EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 2, 1999
AMONG
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
AS BORROWER,
DUKE-WEEKS REALTY CORPORATION,
AS GENERAL PARTNER AND GUARANTOR,
THE FIRST NATIONAL BANK OF CHICAGO AS
ADMINISTRATIVE AGENT AND LENDER,
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND JOINT BOOK RUNNER,
WACHOVIA SECURITIES, INC.,
AS LEAD ARRANGER, JOINT BOOK RUNNER
AND CO-SYNDICATION AGENT,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
AS CO-ARRANGER, CO-SYNDICATION AGENT AND LENDER,
FIRST UNION NATIONAL BANK,
AS CO-AGENT AND LENDER
PNC BANK, NATIONAL ASSOCIATION,
AS CO-AGENT AND LENDER
THE SEVERAL OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
TABLE OF CONTENTS
Page
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RECITALS............................................................................................. 1
ARTICLE I DEFINITIONS................................................................................ 1
ARTICLE II THE CREDIT................................................................................ 15
2.1. Commitment........................................................................ 15
2.2. Final Principal Payment........................................................... 15
2.3. Loans............................................................................. 16
2.4. Applicable Margins................................................................ 16
2.5. Facility Fee...................................................................... 16
2.6. Upfront Fee....................................................................... 16
2.7. Conversion and Extension Fees..................................................... 17
2.8. Minimum Amount of Each Advance.................................................... 17
2.9. Optional Principal Payments....................................................... 17
2.10. Method of Selecting Types and Interest Periods for New Advances................... 17
2.11. Conversion and Continuation of Outstanding Advances............................... 18
2.12. Changes in Interest Rate, Etc..................................................... 18
2.13. Rates Applicable After Default.................................................... 18
2.14 INTENTIONALLY OMITTED............................................................. 19
2.15 INTENTIONALLY OMITTED............................................................. 19
2.16. Method of Payment................................................................. 19
2.17. Notes; Telephonic Notices......................................................... 19
2.18. Interest Payment Dates; Interest and Fee Basis.................................... 20
2.19. Notification of Advances, Interest Rates and Prepayments.......................... 20
2.20. Lending Installations............................................................. 20
2.21. Non-Receipt of Funds by the Administrative Agent.................................. 20
2.22. Withholding Tax Exemption......................................................... 21
2.23. Usury............................................................................. 21
2.24. Applications of Moneys Received................................................... 21
2.25. Conversion and Extension Options ................................................ 22
ARTICLE III INTENTIONALLY OMITTED.................................................................... 22
ARTICLE IV CHANGE IN CIRCUMSTANCES................................................................... 23
4.1. Yield Protection.................................................................. 23
4.2. Changes in Capital Adequacy Regulations........................................... 24
4.3. Availability of LIBOR Advances.................................................... 25
4.4. Funding Indemnification........................................................... 25
4.5. Lender Statements; Survival of Indemnity.......................................... 25
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TABLE OF CONTENTS
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(CONT'D)
ARTICLE V CONDITIONS PRECEDENT....................................................................... 25
5.1. Effective Date.................................................................... 25
5.2. Each Advance...................................................................... 28
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................ 28
6.1. Existence......................................................................... 28
6.2. Authorization and Validity........................................................ 29
6.3. No Conflict; Government Consent................................................... 29
6.4. Financial Statements; Material Adverse Change..................................... 29
6.5. Taxes............................................................................. 29
6.6. Litigation and Guarantee Obligations.............................................. 30
6.7. Subsidiaries...................................................................... 30
6.8. ERISA............................................................................. 30
6.9. Accuracy of Information........................................................... 30
6.10. Margin Stock...................................................................... 30
6.11. Material Agreements............................................................... 30
6.12. Compliance With Laws.............................................................. 30
6.13. Ownership of Properties........................................................... 31
6.14. Investment Company Act............................................................ 31
6.15. Public Utility Holding Company Act................................................ 31
6.16. Solvency.......................................................................... 31
6.17. Insurance......................................................................... 31
6.18. REIT Status....................................................................... 32
6.19. Environmental Matters............................................................. 32
6.20. Unencumbered Assets............................................................... 33
6.21. Year 2000 Representation and Warranty............................................. 33
6.22. Merger............................................................................ 33
ARTICLE VII COVENANTS................................................................................ 33
7.1. Financial Reporting............................................................... 34
7.2. Use of Proceeds................................................................... 35
7.3. Notice of Default................................................................. 36
7.4. Conduct of Business............................................................... 36
7.5. Taxes............................................................................. 36
7.6. Insurance......................................................................... 36
7.7. Compliance with Laws.............................................................. 37
7.8. Maintenance of Properties......................................................... 37
7.9. Inspection........................................................................ 37
7.10. Maintenance of Status............................................................. 37
7.11. Dividends......................................................................... 37
7.12. Merger; Sale of Assets............................................................ 37
7.13. General Partner's Ownership and Control of Borrower............................... 38
7.14. Sale and Leaseback................................................................ 38
7.15. Liens............................................................................. 38
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TABLE OF CONTENTS
-----------------
(CONT'D)
7.16. Affiliates........................................................................ 39
7.17. Interest Rate Hedging............................................................. 39
7.18. Variable Interest Indebtedness.................................................... 39
7.19. Consolidated Net Worth............................................................ 39
7.20. Indebtedness and Cash Flow Covenants.............................................. 39
7.21. Environmental Matters............................................................. 40
7.22. Control of the General Partner.................................................... 41
7.23. Senior Management of Borrower..................................................... 41
7.24. Borrower's Partnership Agreement.................................................. 41
7.25. General Partner's Assets.......................................................... 41
7.26. Notice of Rating Change........................................................... 41
7.27. Year 2000 Compliance.............................................................. 41
7.28 Delivery of Subsidiary Guaranties ................................................ 41
ARTICLE VIII DEFAULTS................................................................................ 42
ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................ 44
9.1. Acceleration...................................................................... 44
9.2. Amendments........................................................................ 44
9.3. Preservation of Rights............................................................ 45
ARTICLE X GENERAL PROVISIONS......................................................................... 45
10.1. Survival of Representations....................................................... 45
10.2. Governmental Regulation........................................................... 45
10.3. Taxes............................................................................. 45
10.4. Headings.......................................................................... 45
10.5. Entire Agreement.................................................................. 46
10.6. Several Obligations; Benefits of this Agreement................................... 46
10.7. Expenses; Indemnification......................................................... 46
10.8. Numbers of Documents.............................................................. 46
10.9. Accounting........................................................................ 46
10.10. Severability of Provisions........................................................ 47
10.11. Nonliability of Lenders........................................................... 47
10.12. Publicity......................................................................... 47
10.13. CHOICE OF LAW..................................................................... 47
10.14. CONSENT TO JURISDICTION........................................................... 47
10.15. WAIVER OF JURY TRIAL.............................................................. 48
ARTICLE XI THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS..................................... 48
11.1. Appointment....................................................................... 48
11.2. Powers............................................................................ 48
11.3. General Immunity.................................................................. 48
11.4. No Responsibility for Loans, Recitals, etc........................................ 48
11.5. Action on Instructions of Lenders................................................. 49
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TABLE OF CONTENTS
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(CONT'D)
11.6. Employment of Agents and Counsel.................................................. 49
11.7. Reliance on Documents; Counsel.................................................... 49
11.8. Administrative Agent's Reimbursement and Indemnification.......................... 49
11.9. Rights as a Lender................................................................ 49
11.10. Lender Credit Decision............................................................ 50
11.11. Successor Administrative Agent.................................................... 50
11.12. Notice of Defaults................................................................ 51
11.13. Requests for Approval............................................................. 51
11.14. Copies of Documents............................................................... 51
11.15. Defaulting Lenders................................................................ 51
ARTICLE XII SETOFF; RATABLE PAYMENTS................................................................. 52
12.1. Setoff............................................................................ 52
12.2. Ratable Payments.................................................................. 52
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS....................................... 52
13.1. Successors and Assigns............................................................ 52
13.2. Participations. .................................................................. 53
13.3. Assignments. ..................................................................... 54
13.4 INTENTIONALLY OMITTED.............................................................. 54
13.4. Dissemination of Information...................................................... 54
13.5. Tax Treatment..................................................................... 55
ARTICLE IX NOTICES................................................................................... 55
14.1. Giving Notice..................................................................... 55
14.2. Change of Address................................................................. 55
ARTICLE XV COUNTERPARTS.............................................................................. 55
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TABLE OF CONTENTS
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(CONT'D)
EXHIBITS:
Exhibit A Pricing Grid
Exhibit B-1 Note
Exhibit B-2 INTENTIONALLY OMITTED
Exhibit C-1 INTENTIONALLY OMITTED
Exhibit C-2 INTENTIONALLY OMITTED
Exhibit C-3 INTENTIONALLY OMITTED
Exhibit D Form of Opinion
Exhibit E Form of Loan/Credit Related Money Transfer Instruction
Exhibit F Form of Compliance Certificate
Exhibit G Minimum Specifications for Environmental Investigations
Exhibit H Form of Assignment Agreement
Exhibit I INTENTIONALLY OMITTED
Exhibit J INTENTIONALLY OMITTED
Exhibit K Form of Subsidiary Guaranty
SCHEDULES:
Schedule 1 Subsidiaries and Other Investments
Schedule 2 Indebtedness and Liens
Schedule 3 Unencumbered Assets
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REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement dated as of July 2, 1999 is among
Duke-Weeks Realty Limited Partnership, an Indiana limited partnership (the
"BORROWER"), Duke-Weeks Realty Corporation, an Indiana corporation (the "GENERAL
PARTNER" and the "GUARANTOR"), Banc One Capital Markets, Inc. ("BOCM") and
Wachovia Securities, Inc. ("WACHOVIA") (collectively, the "LEAD ARRANGERS" and
"JOINT BOOK RUNNERS"), ▇▇▇▇▇ Fargo Bank, National Association, as Co-Arranger
(the "CO-ARRANGER"), The First National Bank of Chicago ("FIRST CHICAGO") as a
Lender and not individually, but as "ADMINISTRATIVE AGENT", ▇▇▇▇▇ Fargo and
Wachovia as "CO-SYNDICATION AGENTS", First Union National Bank, as Co-Agent, PNC
Bank, National Association, as Co-Agent, and the several banks, financial
institutions and other entities from time to time parties to this Agreement
(collectively, with First Chicago and ▇▇▇▇▇ Fargo, the "LENDERS") (this
"AGREEMENT").
RECITALS
A. Pursuant to that certain Agreement and Plan of Merger dated February
28, 1999, the General Partner is the surviving entity of the merger of Weeks
Corporation into Duke Realty Investments, Inc. and Borrower is the surviving
entity of the merger of Weeks Realty L.P. into Duke Realty Limited Partnership.
B. The Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing and managing office, industrial and
retail properties.
C. The General Partner, the Borrower's sole general partner, is listed
on the New York Stock Exchange and is qualified as a real estate investment
trust.
D. The Borrower and the General Partner have requested that the Lenders
make loans available to the Borrower in the aggregate amount of up to
$300,000,000, pursuant to the terms of this Agreement (the "FACILITY") and that
the Administrative Agent act as administrative agent for the Lenders. The
Administrative Agent and the Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Administrative Agent" means The First National Bank of Chicago in its
capacity as agent for the Lenders pursuant to ARTICLE XI, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to ARTICLE XI.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same Type
and, in the case of LIBOR Advances, for the same LIBOR Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, which initially shall be $300,000,000.
"Agreement" means this Revolving Credit Agreement, as it may be amended
or modified
"Applicable Margin" means the applicable margin set forth in the table
in EXHIBIT A used in calculating the interest rate applicable to the various
Types of Advances which shall vary from time to time in accordance with
Borrower's and Guarantor's long term unsecured debt ratings.
"Arrangers" means BOCM, Wachovia and ▇▇▇▇▇ Fargo.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assets Under Development" means, as of any date of determination, any
Project owned by the Borrower or any of its Subsidiaries on which the
construction of new income-producing building or buildings has been commenced
and is continuing, both such land and improvements under construction to be
valued for purposes of this Agreement at then-current book value, as determined
in accordance with GAAP.
"Authorized Officer" means any of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, A.
▇▇▇ ▇▇▇▇▇, ▇▇., or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ acting singly.
"Borrower" means Duke-Weeks Realty Limited Partnership, an Indiana
limited partnership, and its successors and permitted assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in SECTION 2.10.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, Illinois, San Francisco, California and New
York, New York for the conduct of substantially all of their commercial lending
activities and on which dealings in United States dollars are carried on in the
London interbank market and (ii) for all other purposes, a day (other
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than a Saturday or Sunday) on which banks generally are open in Chicago,
Illinois and San Francisco, California for the conduct of substantially all of
their commercial lending activities.
"Capital Expenditure Reserve Amount" means, for any quarter, the
greater of (i) 6% of EBITDA for such quarter or (ii) the average quarterly
capital expenditures, leasing commissions and tenant improvement costs except
for leasing commissions and tenant improvement costs associated with the initial
leasing of space not previously occupied (I.E., first generation space) for the
four most recently completed quarters.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalents" means, as of any date, (i) securities issued or
directly and fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than one year
from such date, (ii) time deposits and certificates of deposit having maturities
of not more than one year from such date and issued by any domestic commercial
bank having (A) senior long-term unsecured debt rated at least A or the
equivalent thereof by S&P, A or the equivalent thereof by Duff & ▇▇▇▇▇▇ or A2 or
the equivalent thereof by ▇▇▇▇▇'▇ and (B) capital and surplus in excess of
$500,000,000, and (iii) commercial paper rated at least A-1 or the equivalent
thereof by S&P, A-1 or the equivalent thereof by Duff & ▇▇▇▇▇▇ or P-1 or the
equivalent thereof by ▇▇▇▇▇'▇ and in any such case maturing within 90 days from
such date.
"CBR Advance" means an Advance which bears interest at the CBR Rate.
"CBR Applicable Margin" means, as of any date, the Applicable Margin in
effect on such date with respect to CBR Advances and CBR Loans.
"CBR Loan" means a Loan which bears interest at the CBR Rate.
"CBR Rate" means, for any day, a rate per annum equal to (i) the
Corporate Base Rate for such day plus (ii) CBR Applicable Margin for such day,
in each case changing when and as the Corporate Base Rate changes.
"Closing Date" means the date of this Agreement.
"Co-Arranger" means ▇▇▇▇▇ Fargo.
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"Co-Syndication Agents" means Wachovia and ▇▇▇▇▇ Fargo
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to SECTION 13.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Condemnation" is defined in SECTION 8.9.
"Consent Notice" is defined in SECTION 2.25.
"Consolidated Net Income" means, for any period, consolidated net
income (or loss) of the General Partner, the Borrower and their Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP; PROVIDED
that there shall be excluded (a) the income (or deficit) of any other Person
accrued prior to the date it becomes a Subsidiary of the General Partner or the
Borrower or is merged into or consolidated with the General Partner, the
Borrower or any of their Subsidiaries and (b) the undistributed earnings of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any contractual obligation or requirement of law applicable to such Subsidiary.
"Consolidated Net Worth" means, as of any date of determination, an
amount equal to (a) Market Capitalization as of such date MINUS (b) Total
Liabilities as of such date.
"Consolidated Secured Indebtedness" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all Indebtedness
of the General Partner, the Borrower and their respective Subsidiaries
outstanding at such date which is secured by a Lien on any asset of the General
Partner, the Borrower or any of their respective Subsidiaries and (b) the
excess, if any, of (i) the aggregate principal amount of all Unsecured
Indebtedness of the Subsidiaries of the General Partner or the Borrower OVER
(ii) $5,000,000, determined on a consolidated basis in accordance with GAAP and
(c) the General Partner's and Borrower's pro rata share of any secured debt in
Investment Affiliates.
"Consolidated Senior Unsecured Indebtedness" means, as of any date of
determination, the sum of the aggregate principal amount of all Indebtedness of
the General Partner, the Borrower and their Subsidiaries outstanding at such
date, which does not constitute Consolidated Secured Indebtedness, but excluding
Indebtedness which is contractually subordinated to the Indebtedness of the
General Partner, the Borrower and their Subsidiaries under the Loan Documents on
customary terms acceptable to the Administrative Agent.
"Consolidated Total Indebtedness" means, as of any date of
determination, all Indebtedness of the General Partner, the Borrower and their
respective Subsidiaries outstanding at such date, determined on a consolidated
basis in accordance with GAAP.
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"Consolidated Unsecured Indebtedness" means, as of any date of
determination, the sum of the aggregate principal amount of all Indebtedness of
the General Partner, the Borrower and their Subsidiaries outstanding at such
date, which does not constitute Consolidated Secured Indebtedness.
"Continuing Lenders" is defined in SECTION 2.25.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the General Partner, the Borrower or any of
their Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in SECTION 2.11.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as such corporate base rate changes.
"Debt Service" means, for any fiscal quarter, Interest Expense plus
scheduled principal amortization payments (excluding balloon payments), PROVIDED
that in the case of amortization payments made less frequently than quarterly,
25% of the aggregate amortization payments for the fiscal year including such
fiscal quarter shall be included in Debt Service for such quarter.
"Default" means an event of default described in ARTICLE VIII.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; PROVIDED that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Co. and its
successors.
"EBITDA" means operating income before extraordinary items, equity in
earnings of Investment Affiliates and minority interest in earnings, as reported
by the General Partner, the Borrower and their Subsidiaries in accordance with
GAAP, plus (i) Interest Expense, depreciation, amortization and income tax (if
any) expense plus (ii) (without redundancy) the General Partner's and the
Borrower's pro rata share of Net Operating Income from Investment Affiliates.
"Environmental Laws" means any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to the General Partner, the Borrower or any Subsidiary
or any of their respective assets or Projects.
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"Equity Value" means Net Operating Income capitalized at a 9.5% rate
less any Indebtedness or, in the case of assets acquired after the closing of
the Facility, the purchase price less any Indebtedness.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Extension Request" is defined in SECTION 2.25.
"Facility" means the meaning given to such word in Recital D.
"Facility Fee" is defined in SECTION 2.5.
"Facility Termination Date" means July 1, 2000, subject to extension to
April 14, 2001 pursuant to SECTION 2.25 of this Agreement.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fixed Charges" means, for any fiscal quarter, Debt Service plus the
Capital Expenditure Reserve Amount for such quarter, PLUS Preferred Dividends.
"Funds From Operations" means, for any period, Consolidated Net Income
for such period without giving effect to depreciation and amortization, gains or
losses from extraordinary items, gains or losses on sales of real estate, gains
or losses on investments in marketable securities and any provisions for or
benefits from income taxes for such period.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in SECTION 7.1.
"General Partner" means Duke-Weeks Realty Corporation, an Indiana
corporation, the sole general partner of the Borrower, and its successors and
assigns.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
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"Guarantee Obligation" means, as to any Person (the "GUARANTEEING
PERSON"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any Letter of Credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter-indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; PROVIDED, HOWEVER, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the maximum stated
amount of the primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), PROVIDED, that in the absence of any such stated amount
or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Guarantor" means the General Partner in its capacity as the guarantor
under the Guaranty.
"Guaranty" means that certain Guaranty of even date herewith executed
by the Guarantor in favor of the Administrative Agent, for the ratable benefit
of the Lenders, as it may be amended or modified and in effect from time to
time.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), to the extent such obligations
constitute indebtedness for the purposes of GAAP, (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar instrument,
(d) all Capitalized Lease Obligations, (e) all obligations of such Person in
respect of acceptances issued or created for the account of such Person, (f) all
Guarantee Obligations of such Person (excluding in any calculation of
consolidated indebtedness of the Borrower, Guarantee Obligations of the Borrower
in respect of primary obligations of any Subsidiary), (g) all reimbursement
obligations of such Person for letters of credit and other contingent
liabilities, (h) all liabilities secured by any lien (other than liens for taxes
not yet due and payable) on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment thereof, (i)
any repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to accounts or notes receivable sold by such Person or any of its
Subsidiaries, (j) any other
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transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheet of such Person, (k) such Person's pro rata share of debt in Investment
Affiliates and (l) any loans where such Person is liable as a general partner.
"Indemnified Parties" means the Lead Arrangers, the Co-Arranger and the
Administrative Agent.
"Interest Expense" means all interest expense of the General Partner,
the Borrower and their Subsidiaries determined in accordance with GAAP plus (i)
the General Partner's and the Borrower's pro rata share of interest expense in
Investment Affiliates, (ii) capitalized interest not covered by an interest
reserve from a loan facility, (iii) 100% of any accrued, or paid interest
incurred on any obligation for which the Borrower or the General Partner is
wholly or partially liable under repayment, interest carry, or performance
guarantees, or other relevant liabilities, provided that no expense shall be
included more than once in such calculation even if it falls within more than
one of the foregoing categories.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"Investment Affiliate" means any Person in which the General Partner or
the Borrower, directly or indirectly, has an ownership interest, whose financial
results are not consolidated under GAAP with the financial results of the
General Partner or the Borrower on the consolidated financial statements of the
General Partner or the Borrower.
"Lead Arrangers" means Wachovia and BOCM.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, their respective successors and assigns and any other lending
institutions that subsequently become parties to this Agreement pursuant to
SECTION 13.3.
"Lending Installation" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"LIBOR Advance" means an Advance which bears interest at a LIBOR Rate.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Interest Period, the Applicable Margin in effect for such LIBOR Interest
Period as determined in accordance with SECTION 2.4 hereof.
-8-
"LIBOR Base Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in U.S. dollars are offered by First Chicago to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such LIBOR Interest
Period, in the approximate amount of the relevant LIBOR Advance and having a
maturity approximately equal to such LIBOR Interest Period.
"LIBOR Interest Period" means with respect to a LIBOR Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such LIBOR Interest Period shall end on
(but exclude) the day which corresponds numerically to such date one, two, three
or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such LIBOR Interest Period shall end on the last Business Day of such
next, second, third or sixth succeeding month. If a LIBOR Interest Period would
otherwise end on a day which is not a Business Day, such LIBOR Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such LIBOR Interest
Period shall end on the immediately preceding Business Day. In no event shall a
LIBOR Interest Period extend beyond the then current Facility Termination Date.
"LIBOR Loan" means a Loan which bears interest at a LIBOR Rate.
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such LIBOR Interest Period,
plus (ii) the LIBOR Applicable Margin in effect on the day that such LIBOR Base
Rate was determined. The LIBOR Rate shall be rounded to the next higher multiple
of 1/100 of 1% if the rate is not a multiple of 1/16 of 1% or 1/100 of 1%.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Guaranty, and any
other document from time to time evidencing or securing indebtedness or
obligations incurred by the General Partner or the Borrower under this
Agreement, as any of the foregoing may be amended or modified from time to time.
"Market Capitalization" means (a) Total Property Operating Income
capitalized at 9.5%, plus (b) "earnings from service operations" capitalized at
20%, plus (c) 50% of Assets Under Development (75% for a property that has
signed leases for 75% or more of the space), plus (d) the amount of any cash
equivalents, excluding tenant security and other restricted deposits, plus (e)
the lower of book value or market value of land not under development.
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"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the General Partner, the Borrower and their Subsidiaries taken
as a whole, (ii) the ability of the General Partner or the Borrower to perform
their obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders thereunder.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or in the Note or other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions of the Loan.
"Merger" means the merger of Weeks, General Partner and their
respective operating partnerships substantially in the form announced by Weeks
on March 1, 1999 pursuant to that certain Agreement and Plan of Merger dated
February 28, 1999.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the General Partner, the
Borrower or any member of the Controlled Group is a party to which more than one
employer is obligated to make contributions.
"Net Operating Income" means, with respect to any Investment Affiliate
or Subsidiary, for any period, such entity's operating income minus all
operating expenses (as determined in accordance with GAAP) incurred in
connection with and directly attributable to the generation of such operating
income but excluding interest expense and other debt service charges and any
non-cash charges such as depreciation or amortization of financing costs.
"Note" means a promissory note, in substantially the form of EXHIBIT
B-1 hereto, duly executed by the Borrower and payable to the order of a Lender
in the amount of its Commitment, including any amendment, modification, renewal
or replacement of such promissory note.
"Notice of Assignment" is defined in SECTION 13.3.2.
"Obligations" means the Advances and all accrued and unpaid fees and
all other obligations of Borrower to the Administrative Agent or the Lenders
arising under this Agreement or any of the other Loan Documents.
"Participants" is defined in SECTION 13.2.1.
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"Payment Date" means, with respect to the payment of interest accrued
on any Advance, the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means for each Lender the ratio that such Lender's
Commitment bears to the Aggregate Commitment, expressed as a percentage.
"Permitted Liens" are defined in SECTION 7.15.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the General Partner, the Borrower or any member of the
Controlled Group may have any liability.
"Preferred Dividends" shall mean, for any period, without duplication
of such amounts as constitute intercompany debts or distributions, the sum of
(a) dividends or distributions due and payable or accrued during such period on
preferred stock issued by General Partner or a Subsidiary, and (b) distributions
which are the functional equivalent of preferred dividends (i.e., which the
issuer is required to make prior to distributions on another class or other
classes of partnership interests) and which are due and payable or accrued
during such period on preferred partnership interests issued by Borrower or any
other Subsidiary.
"Project" means any real estate asset owned or operated by the Borrower
or any Subsidiary and operated or intended to be operated as an office,
industrial or retail property.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Property Operating Income" means, with respect to any Project or other
real estate asset, for any period, earnings from rental operations (computed in
accordance with GAAP) attributable to such Project or other real estate asset
plus depreciation, amortization and interest expense for such period, and, if
such period is less than a year, adjusted by straight lining various ordinary
operating expenses which are payable less frequently than once during every such
period (e.g. real estate taxes and insurance).
"Purchasers" is defined in SECTION 13.3.1.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
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"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least
66 2/3% of the Aggregate Commitment (not held by Defaulting Lenders who are not
entitled to vote) or, if the Aggregate Commitment has been terminated, Lenders
in the aggregate holding at least 66 2/3% of the aggregate unpaid principal
amount of the outstanding Advances (not held by Defaulting Lenders who are not
entitled to vote).
"Response Date" is defined in SECTION 2.25.
"Revolving Credit Termination Balance" means the aggregate principal
amount of Advances outstanding on the Revolving Credit Termination Date after
giving effect to any Advances made or repaid on that date.
"Revolving Credit Termination Date" means July 1, 2000 or any later
date as may be specified as the Revolving Credit Termination Date in accordance
with SECTION 2.25.
"Reserve Requirement" means, with respect to a LIBOR Interest Period,
the maximum aggregate reserve requirement on Eurocurrency liabilities.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the General Partner
or the Borrower or any member of the Controlled Group for employees of the
General Partner or the Borrower or any member of the Controlled Group.
"Subsidiary" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower or the General Partner.
"Subsidiary Guarantor" means each wholly owned Subsidiary of the
Borrower that does not have any Indebtedness and which executes and delivers to
the Administrative Agent a Subsidiary Guaranty pursuant to SECTION 7.28.
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"Subsidiary Guaranty" means any guaranty executed and delivered by any
Subsidiary of the Borrower, substantially in the form of EXHIBIT K, as the same
may be amended, supplemented or otherwise modified from time to time.
"Substantial Portion" means, with respect to the Property of the
General Partner, the Borrower or their Subsidiaries, Property which (i)
represents more than 10% of the consolidated assets of the General Partner, the
Borrower and their Subsidiaries as disclosed on the most recently issued
quarterly consolidated financial statements of the General Partner, the Borrower
and their Subsidiaries, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the General Partner,
the Borrower and their Subsidiaries as reflected in the financial statements
referred to in clause (i) above.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Term Loan Request" is defined in SECTION 2.25.
"Total Liabilities" means all Indebtedness plus all other GAAP
liabilities of the Borrower, General Partner and their respective Subsidiaries.
"Total Property Operating Income" means the sum of (i) earnings from
rental operations (computed in accordance with GAAP) plus depreciation,
amortization and interest expense (adjusted for any acquisitions and
divestitures), and (ii) (without redundancy) the Borrower's pro rata share of
Net Operating Income from Investment Affiliates. The earnings from rental
operations shall be adjusted to include pro forma earnings (as substantiated to
the satisfaction of the Administrative Agent) for an entire quarter for any
property acquired or placed in service during the quarter and to exclude
earnings during such quarter from any property not owned as of the end of the
quarter.
"Transferee" is defined in SECTION 13.5.
"Type" means, with respect to any Advance, its nature as a CBR Advance
or a LIBOR Advance.
"Unencumbered Asset" means, with respect to any Project which is in
service, at any date of determination, the circumstance that such asset on such
date (a) is not subject to any Liens or claims (including restrictions on
transferability or assignability) of any kind (including any such Lien, claim or
restriction imposed by the organizational documents of any Subsidiary, but
excluding Permitted Liens other than those identified in SECTIONS 7.15(v) and
(vi)), (b) is not subject to any agreement (including (i) any agreement
governing Indebtedness incurred in order to finance or refinance the acquisition
of such asset, and (ii) if applicable, the organizational documents of any
Subsidiary) which prohibits or limits the ability of the General Partner, the
Borrower or any of their Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any assets or Capital Stock of the General Partner, the
Borrower or any of their Subsidiaries, (c) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset) which entitles any Person to the
benefit of any Lien (but excluding Permitted Liens other than those identified
in SECTIONS 7.15(v) and (vi)) on any assets or Capital Stock of the General
Partner, the Borrower or any of their
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Subsidiaries, or would entitle any Person to the benefit of any Lien (but
excluding Permitted Liens other than those identified in SECTIONS 7.15(v) and
(vi)) on such assets or Capital Stock upon the occurrence of any contingency
(including, without limitation, pursuant to an "equal and ratable" clause), and
(d) is 100% owned in fee simple by the Borrower or a Subsidiary Guarantor. For
the purposes of this Agreement, any Property of a Subsidiary shall not be deemed
to be unencumbered unless both (i) such Property and (ii) all Capital Stock of
such Subsidiary held by the General Partner or the Borrower is unencumbered.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unrestricted Cash and Cash Equivalents" means, as of any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash then
held by the Borrower or any of its consolidated Subsidiaries and (b) the
aggregate amount of Unrestricted Cash Equivalents (valued at the lower of cost
and fair market value) then held by the Borrower or any of its consolidated
Subsidiaries. As used in this definition, "Unrestricted" means the specified
asset is not subject to any Liens or claims of any kind in favor of any Person.
"Value of Unencumbered Assets" means, as of the end of a quarter, the
value of all Unencumbered Assets as of such date (other than those that are not
approved by the Required Lenders), determined by capitalizing the Property
Operating Income for such quarter (as annualized) from such Unencumbered Assets
at a rate of 9.5%. The Required Lenders shall have the right to approve assets
which are included in the determination of the Value of Unencumbered Assets. The
substitution or addition of new assets shall also be subject to the approval of
the Required Lenders. If an approved asset is acquired during a quarter then
Borrower shall be entitled to include pro forma Property Operating Income from
such property for the entire quarter in the foregoing calculation. If an asset
is not owned as of the last day of a quarter then no value shall be included
based on capitalizing Property Operating Income from such asset.
"Wachovia" means Wachovia Securities, Inc.
"Weeks" means Weeks Corporation as such entity existed prior to the
effective date of the Merger.
"Weeks LP" means Weeks Realty L.P. as such entity existed prior to the
effective date of the Merger.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such
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Person or one or more Wholly-Owned Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any
partnership, association, joint venture or similar business organization 100% of
the ownership interests having ordinary voting power of which shall at the time
be so owned or controlled.
"Withdrawing Lender" is defined in SECTION 2.25.
"Yield Related Law" is defined in SECTION 4.1.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDIT
2.1. COMMITMENT. From and including the date of this Agreement and
prior to the Revolving Credit Termination Date, each Lender severally agrees,
subject to the terms and conditions set forth in this Agreement, to make Loans
to the Borrower from time to time prior to the Revolving Credit Termination
Date, provided THAT the making of any such Loan will not cause the total of the
outstanding principal balance of all Loans to exceed the Aggregate Commitment.
Each Lender shall fund its Percentage of each Advance and no Lender will be
required to fund any amount, which when aggregated with such Lender's Percentage
of all other Advances then outstanding would exceed such Lender's Commitment.
Subject to the terms of this Agreement, the Borrower may borrow, repay and
reborrow at any time prior to the Revolving Credit Termination Date. The
Commitments of each Lender to lend hereunder shall expire on the Revolving
Credit Termination Date.
2.2. FINAL PRINCIPAL PAYMENT. Any outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.3. LOANS. Each Advance hereunder shall consist of Loans made from the
several Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment. The Advances may be CBR Advances
or LIBOR Advances, or a combination thereof, selected by the Borrower in
accordance with SECTIONS 2.10 and 2.11.
2.4. APPLICABLE MARGINS. The CBR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different Types of Advances shall vary from time to time in accordance with the
long-term unsecured debt ratings from Moody's, ▇▇▇▇ & ▇▇▇▇▇▇ and S&P of the
General Partner and the Borrower. In the event the General Partner and the
Borrower have different ratings, the rating of the higher rated entity shall be
used. In the event the rating agencies are split on the rating for the higher
rated entity, the second highest rating for such entity shall be deemed to be
the applicable rating (e.g., if the higher rated entity's ▇▇▇▇▇'▇ debt rating is
Baa1, its S&P debt rating is BBB and its Duff and ▇▇▇▇▇▇' rating is BBB, then
the Applicable Margins shall be computed based on the S&P rating), and the
Applicable Margins shall be adjusted effective on the next Business Day
following any change in the higher rated entity's ▇▇▇▇▇'▇ debt rating, S&P's
debt rating and/or Duff & ▇▇▇▇▇▇'
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debt rating, as the case may be. The applicable debt ratings and the Applicable
Margins are set forth in the table attached as EXHIBIT A. In the event that S&P,
Duff & ▇▇▇▇▇▇ or ▇▇▇▇▇'▇ or any two of them shall discontinue their ratings of
the REIT industry, the General Partner or the Borrower, a mutually agreeable
substitute rating agency (or two mutually agreeable substitute agencies if two
of the existing rating agencies discontinue such ratings) shall be selected by
the Required Lenders and the Borrower. If the Required Lenders and the Borrower
cannot agree on a substitute rating agency or substitute rating agencies within
thirty (30) days of such discontinuance, or if S&P, Duff & ▇▇▇▇▇▇, and ▇▇▇▇▇'▇
shall discontinue their ratings of the REIT industry, the Borrower, or the
General Partner, the Applicable Margin to be used for the calculation of
interest on Advances hereunder shall be the highest Applicable Margin for each
Type.
If a rating agency downgrade or discontinuance results in an increase
in the CBR Applicable Margin or the LIBOR Applicable Margin and if such increase
is reversed and the affected Applicable Margin is restored within ninety (90)
days thereafter, at the Borrower's request, the Borrower shall receive a credit
against interest next due the Lenders equal to interest accrued from time to
time during such period of downgrade or discontinuance and actually paid by the
Borrower on the Advances at the differential between such Applicable Margins.
2.5. FACILITY FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (the "FACILITY FEE")
calculated at a per annum percentage ("FACILITY FEE RATE") of the total
Aggregate Commitment. The Facility Fee Rate shall vary from time to time based
on the Borrower's or General Partner's long term unsecured debt rating as set
forth in the table attached hereto as EXHIBIT A, payable quarterly in arrears on
the last day of each calendar quarter hereafter beginning September 30, 1999 and
on the Facility Termination Date.
2.6. UPFRONT FEE. The Borrower will pay to Administrative Agent for the
benefit of the Lenders on or before the date hereof the fees specified in that
certain Fee Letter dated June 7, 1999. The Administrative Agent shall distribute
such fees to the Lenders in accordance with a separate agreement between the
Administrative Agent and the Lenders.
2.7. CONVERSION AND EXTENSION FEES. If Borrower exercises its option
pursuant to a Term Loan Request under SECTION 2.25 of this Agreement to convert
the aggregate outstanding Loans to a term loan, Borrower shall pay each Lender a
fee equal to 0.175% of the aggregate of such Lender's outstanding Loans on the
initial Revolving Credit Termination Date. If the Facility is extended pursuant
to an Extension Request under SECTION 2.25 of this Agreement, Borrower shall pay
each Continuing Lender a fee equal to 0.175% of such Continuing Lender's
Commitment immediately after the extension and reallocation of all of the
Commitments pursuant to SECTION 2.25.
2.8. MINIMUM AMOUNT OF EACH ADVANCE. Each LIBOR Advance shall be in the
minimum amount of $2,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each CBR Advance shall be in the minimum amount of $1,000,000 (and
in multiples of $500,000 if in excess thereof), provided, however, that any CBR
Advance may be in the amount of the unused Aggregate Commitment.
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2.9. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all or any part of outstanding CBR Advances
upon two Business Days' prior notice to the Administrative Agent. The Borrower
may from time to time pay a LIBOR Advance, provided a LIBOR Advance may not be
paid prior to the last day of the applicable LIBOR Interest Period unless
accompanied by any amount due pursuant to Section 4.4.
2.10. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each LIBOR
Advance, the LIBOR Interest Period applicable to each Advance from time to time.
The Borrower shall give the Administrative Agent irrevocable notice (a
"Borrowing Notice") (i) not later than 10:00 a.m. Chicago time, at least one (1)
Business Day before the Borrowing Date of each CBR Advance and (ii) not later
than 10:00 a.m. Chicago time, at least three (3) Business Days before the
Borrowing Date for each LIBOR Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day, of such
Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected, and
(d) in the case of each LIBOR Advance, the LIBOR Interest
Period applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent at its address specified pursuant to ARTICLE
XIV. The Lenders shall not be obligated to match fund their LIBOR Advances. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent's aforesaid address.
No LIBOR Interest Period may end after the Facility Termination Date
and, unless all of the Lenders otherwise agree in writing, in no event may there
be more than five (5) different LIBOR Interest Periods for LIBOR Advances
outstanding at any one time.
2.11. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. CBR Advances
shall continue as CBR Advances unless and until such CBR Advances are converted
into LIBOR Advances. Each LIBOR Advance shall continue as a LIBOR Advance until
the end of the then applicable LIBOR Interest Period therefor, at which time
such LIBOR Advance shall be automatically converted into an CBR Advance unless
the Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice requesting that, at the end of such LIBOR Interest Period, such LIBOR
Advance continue as a LIBOR Advance for the same or another LIBOR Interest
Period. Subject to the terms of SECTION 2.8, the Borrower may elect from time to
time to convert all or any part of an Advance of any Type into any other Type of
Advance; provided that any conversion of any LIBOR Advance shall be made on, and
only on, the last day of the LIBOR Interest Period applicable thereto. The
Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a LIBOR Advance not later than 10:00 a.m. (Chicago time) at
least one Business Day, in the case of a conversion into an CBR Advance, or
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three Business Days, in the case of a conversion into or continuation of a
LIBOR Advance, prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case
of a conversion into or continuation of a LIBOR Advance,
the duration of the LIBOR Interest Period applicable
thereto.
2.12. CHANGES IN INTEREST RATE, ETC. Each CBR Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a LIBOR Advance
into a CBR Advance pursuant to SECTION 2.11 to but excluding the date it becomes
due or is converted into a LIBOR Advance pursuant to SECTION 2.11 hereof, at a
rate per annum equal to the CBR Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a CBR Advance will take
effect simultaneously with each change in the Corporate Base Rate. Each LIBOR
Advance shall bear interest from and including the first day of the LIBOR
Interest Period applicable thereto to (but not including) the last day of such
LIBOR Interest Period at the interest rate determined as applicable to such
LIBOR Advance.
2.13. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.10 or 2.11, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of SECTION 9.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued beyond its current term as a LIBOR Advance. During
the continuance of a Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of SECTION 9.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each LIBOR Advance shall bear interest for the remainder of the applicable LIBOR
Interest Period at the rate otherwise applicable to such LIBOR Interest Period
plus 2% per annum and (ii) each CBR Advance shall bear interest at a rate per
annum equal to the CBR Rate otherwise applicable to the CBR Advance plus 2% per
annum; provided that such rates shall become applicable automatically without
notice to the Borrower if a Default occurs under SECTION 8.7 or SECTION 8.8.
2.14. INTENTIONALLY OMITTED
2.15. INTENTIONALLY OMITTED
2.16. METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative
-18-
Agent at the Administrative Agent's address specified pursuant to ARTICLE XIV,
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon (local time) on the
date when due and shall be applied by the Administrative Agent among the Lenders
in accordance with the class or type of Obligation being paid. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered by the Administrative Agent to such Lender in the same type of funds
that the Administrative Agent received at its address specified pursuant to
ARTICLE XIV or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender promptly, which is expected to be by the
close of business on the same Business Day received by Administrative Agent if
received by noon (local time) but shall in any event not be later than the next
Business Day, PROVIDED that the Administrative Agent shall pay to such Lenders
interest thereon, at the lesser of (i) the Federal Funds Effective Rate and (ii)
the rate of interest applicable to such Loans, from the Business Day such funds
are received by the Administrative Agent in immediately available funds
(PROVIDED, if such funds are not received by the Administrative Agent by noon
(local time), such period shall commence on the Business Day immediately
following the day such funds are received) until such funds are paid to such
Lenders. The Administrative Agent is hereby authorized to charge the account of
the Borrower maintained with First Chicago for each payment of principal,
interest and fees as it becomes due hereunder.
2.17. NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so record
shall not affect the Borrower's obligations under such Note. Each Lender's books
and records, including without limitation, the information, if any, recorded by
the Lender on the Schedule attached to its Note, shall be deemed to be PRIMA
FACIA correct. The Borrower hereby authorizes the Lenders and the Administrative
Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Administrative Agent or any Lender in good faith believes to be
acting on behalf of the Borrower. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation signed by an Authorized Officer of
each telephonic notice, if such confirmation is requested by the Administrative
Agent or any Lender. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders shall govern absent manifest error.
2.18. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Advance shall be payable on each Payment Date, commencing with the first
such date to occur after the date hereof, and at maturity, whether by
acceleration or otherwise. Interest accrued on each LIBOR Advance shall also be
payable on any date on which the LIBOR Advance is prepaid (provided that nothing
herein shall authorize a prepayment which is not otherwise permitted hereunder).
Interest and Facility Fees shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
-19-
2.19. NOTIFICATION OF ADVANCES, INTEREST RATES AND PREPAYMENTS.
Promptly after receipt thereof (but in no event later than one Business Day
prior to the proposed Borrowing Date for a CBR Advance or three Business Days
prior to the proposed Borrowing Date for a LIBOR Advance) the Administrative
Agent will notify each Lender of the contents of each Borrowing Notice, Term
Loan Request, Extension Request, Conversion/Continuation Notice, and repayment
notice received by it hereunder. The Administrative Agent will notify each
Lender of the interest rate applicable to each LIBOR Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Corporate Base Rate.
2.20. LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.
2.21. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of payment by
the Borrower, the interest rate applicable to the relevant Loan.
2.22. WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Administrative Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires (currently, three successive calendar years for Form 1001 and one
calendar year for Form 4224) or becomes obsolete or after the occurrence of any
event requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof
-20-
as may be reasonably requested by the Borrower or the Administrative Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
2.23. USURY. This Agreement and each Note are subject to the express
condition that at no time shall the Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject any
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents,
the Borrower is at any time required or obligated to pay interest on the
principal balance due hereunder at a rate in excess of the Maximum Legal Rate,
the interest rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous payments in
excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to a Lender for the use, forbearance, or
detention of the sums due under the Loan, shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Loan until payment in full so that the rate or amount of
interest on account of the Loan does not exceed the Maximum Legal Rate of
interest from time to time in effect and applicable to the Loan for so long as
the Loan is outstanding.
2.24. APPLICATIONS OF MONEYS RECEIVED. All moneys collected or received
by the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all reasonable costs incurred in the
collection of such moneys of which the Administrative Agent
shall have given notice to the Borrower;
(ii) to the reimbursement of any yield protection due to the
Lenders in accordance with SECTION 4.1;
(iii) to the payment of the Facility Fee to the Lenders, if then
due, in accordance with their Percentages and to the
payment of the Administrative Agent's Fee to the
Administrative Agent if then due;
(iv) (a) in case the entire unpaid principal of the Loan shall
not have become due and payable, the whole amount received
as interest then due to the Lenders (other than a
Defaulting Lender) as their respective Percentages appear,
together with the whole amount, if any, received as
principal to the Lenders as their respective Percentages
appear, or (b) in case the entire unpaid principal of the
Loan shall have become due and payable, as a
-21-
result of a Default or otherwise, to the payment of the
whole amount then due and payable on the Loan for
principal, together with interest thereon at the Default
Rate to the Lenders (other than a Defaulting Lender) as
their respective Percentages appear until paid in full; and
(v) to the payment of any sums due to each Defaulting Lender as
their respective Percentages appear (provided that
Administrative Agent shall have the right to set-off
against such sums any amounts due from such Defaulting
Lender).
2.25. CONVERSION AND EXTENSION OPTIONS.
(a) The Borrower shall have the option to (1) convert the Revolving
Credit Termination Balance to a term loan maturing on April 14, 2001 (in which
case any unfunded portion of the Commitments shall be cancelled and the Facility
Termination Date shall be extended to April 14, 2001), provided no Default
exists (a "Term Loan Request"), or (2) request an extension to April 14, 2001 of
both the Revolving Credit Termination Date and the Facility Termination Date (an
"Extension Request"). Borrower must provide any such Term Loan Request or
Extension Request to the Administrative Agent no more than sixty (60) days prior
to the initial Revolving Credit Termination Date, and no less than thirty (30)
days prior to the initial Revolving Credit Termination Date, provided that if
Borrower issues an Extension Request and such request is not approved by the
Required Lenders, Borrower may issue a Term Loan Request within five (5) days of
notification that such request was not approved. Promptly upon receipt from the
Borrower of any notice pursuant to this SECTION 2.25, the Administrative Agent
shall notify each Lender of the contents of such notice and, in the case of an
Extension Request, shall request that such Lender approve the Extension Request.
If the Borrower issues a Term Loan Request, the Revolving Credit Termination
Balance shall be converted to a term loan in the manner described above without
the need for any consent or approval of the Administrative Agent, the Arrangers,
the Lenders or any other party. Each Lender approving an Extension Request shall
deliver its written consent (a "Consent Notice") to the Borrower and the
Administrative Agent on or prior to the fifteenth (15th) day after the date on
which such notice is sent by the Administrative Agent to the Lenders (the
"Response Date"). Each Lender may give or withhold its consent to any Extension
Request in its sole discretion. The extension pursuant to any Extension Request
shall only be effective if such extension is approved by the Required Lenders,
and such extension shall not be effective with respect to any Lender which (i)
by notice (a "Withdrawal Notice") to the Borrower and the Administrative Agent
prior to the Response Date declines to consent to such Extension Request or (ii)
fails to respond to the Borrower and the Administrative Agent prior to the
Response Date (each such Lender, a "Withdrawing Lender" and each Lender other
than a Withdrawing Lender, a "Continuing Lender"). The Administrative Agent
shall promptly notify the Borrower and the Lenders whether the Extension Request
was approved or denied. If the consent of the Required Lenders to any such
Extension Request is received by the Administrative Agent on or prior to the
Response Date, (i) the new Revolving Credit Termination Date shall become
effective on the initial Revolving Credit Termination Date, (ii) the Agent shall
promptly notify the Borrower and each Lender of the new Revolving Credit
Termination Date, (iii) the Commitments of the Continuing Lenders shall be
extended on the initial Revolving Credit Termination Date and (iv) the
Withdrawing Lenders
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shall be paid in full and their Commitments shall be cancelled or assumed by new
lenders selected by the Borrower and the Arrangers on the initial Revolving
Credit Termination Date. Upon repayment of a Withdrawing Lender's Loans, such
Lender shall be released from this Agreement, its Percentage of the Aggregate
Commitment, and all of the rights and obligations under the Agreement as of the
date of such release. Such Lender will remain responsible for all obligations
accruing prior to the date of such release. Concurrently with such release, the
Aggregate Commitment shall be reduced by the Commitment of the Lender that is
released and the Percentages shall be recalculated, unless the Borrower arranges
for a new lender to assume such Lender's Commitment by assignment in accordance
with the terms of this Agreement
(b) A Withdrawing Lender shall be obliged, at the request of the
Borrower and the Arrangers and subject to such Withdrawing Lender receiving
payment in full of all amounts owing to it under this Agreement, to assign,
without recourse or warranty and by an assignment agreement substantially in the
form of "EXHIBIT H" attached hereto, all of its rights and obligations under
this Agreement to another financial institution nominated by the Borrower and
the Arrangers and willing to participate in the facility through the new
Revolving Credit Termination Date in place of such Withdrawing Lender; provided
that such assignee satisfies all of the requirements of this Agreement.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1. YIELD PROTECTION. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender therewith (the "Yield Related Law"),
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments
due from the Borrower (excluding federal, state and local
income or franchise taxes on the overall income of any
Lender or applicable Lending Installation), or changes the
basis of taxation of payments to any Lender in respect of
its Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to LIBOR Advances), or
-23-
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of
loans held or interest received by it, by an amount deemed
material by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment. Within twenty (20) days after such
Lender makes any such demand, Borrower may repay all of such Lender's Loans, so
long as no Default exists at the time of such election and the Yield Related Law
affects the yield of less than all of the Lenders. Upon election of such
repayment option and repayment of such Lender's Loans, such Lender shall be
released from this Agreement, its Percentage of the Aggregate Commitment, and
all of the rights and obligations under the Agreement as of the date of such
release. Such Lender will remain responsible for all obligations accruing prior
to the date of such release. Concurrently with such release, the Aggregate
Commitment shall be reduced by the Commitment of the Lender that is released and
the Percentages shall be recalculated, unless the Borrower arranges for a new
lender to assume such Lender's Commitment by assignment in accordance with the
terms of this Agreement.
4.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change (as hereinafter defined), then, within
fifteen days of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion on such increased capital which such Lender determines is attributable
to this Agreement, its Loans, or its obligation to make Loans hereunder (after
taking into account such Lender's policies as to capital adequacy). "CHANGE"
means (i) any change after the date of this Agreement in the Risk-Based Capital
Guidelines or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
4.3. AVAILABILITY OF LIBOR ADVANCES. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive, whether or not having
the force of law, the Administrative Agent shall suspend the availability of
LIBOR Advances and require any LIBOR Advances to be repaid; or
-24-
if the Required Lenders determine that (i) deposits of a type or maturity
appropriate to match fund LIBOR Advances are not available, the Administrative
Agent shall suspend the availability of LIBOR Advances with respect to any LIBOR
Advances made after the date of any such determination, or (ii) an interest rate
applicable to a LIBOR Advance does not accurately reflect the cost of making a
LIBOR Advance, then, if for any reason whatsoever the provisions of SECTION 4.1
are inapplicable, the Administrative Agent shall suspend the availability of
LIBOR Advances with respect to any LIBOR Advances made after the date of any
such determination.
4.4. FUNDING INDEMNIFICATION. If any payment of a LIBOR Advance occurs
on a date which is not the last day of the applicable LIBOR Interest Period,
whether because of acceleration, prepayment or otherwise, or a LIBOR Advance is
not made on the date specified by the Borrower for any reason other than default
by the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain the LIBOR
Advance.
4.5. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Loans to reduce any liability of the Borrower to such
Lender under SECTIONS 4.1 and 4.2 or to avoid the unavailability of a Type of a
LIBOR Advance under SECTION 4.3, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement of
such Lender as to the amount due, if any, under SECTIONS 4.1, 4.2 or 4.4. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a LIBOR Loan shall be
calculated as though each Lender funded its LIBOR Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit used as a
reference in determining the LIBOR Rate applicable to such Loan, whether in fact
that is the case or not. Unless otherwise provided herein, the amount specified
in the written statement shall be payable on demand after receipt by the
Borrower of the written statement. The obligations of the Borrower under
SECTIONS 4.1, 4.2 and 4.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1. EFFECTIVE DATE. This Agreement shall not become effective, and the
Lenders shall not be required to make the initial Advance hereunder unless (a)
the Borrower shall have paid all fees due and payable to the Lenders and the
Administrative Agent hereunder, and (b) the Borrower shall have furnished to the
Administrative Agent, in form and substance satisfactory to the Lenders and
their counsel and with sufficient copies for the Lenders, the following:
(i) The duly executed originals of the Loan Documents,
including the Notes, payable to the order of each of the
Lenders, the Guaranty and this Agreement;
-25-
(ii) Copies, certified by an officer of the General Partner, of
(1) its formation documents (including by-laws), together
with all amendments thereto and (2) the formation documents
(including the Partnership Agreement) of the Borrower,
together with all amendments thereto;
(iii) An incumbency certificate, executed by an officer of the
General Partner, which shall identify by name and title and
bear the signature of the Persons authorized to sign the
Loan Documents and to make borrowings hereunder on behalf
of the Borrower, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower;
(iv) Copies, certified by the Secretary or Assistant Secretary,
of the General Partner's Board of Directors' resolutions
(and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the
Advances provided for herein and the execution, delivery
and performance of the Loan Documents to be executed and
delivered by the General Partner and the Borrower
hereunder;
(v) A written opinion of the General Partner and the Borrower's
counsel, addressed to the Lenders in substantially the form
of EXHIBIT D hereto;
(vi) A certificate, signed by an officer of the General Partner
on behalf of the Borrower and for itself, stating that on
the initial Borrowing Date no Default or Unmatured Default
has occurred and is continuing and that all representations
and warranties of the General Partner and the Borrower are
true and correct as of the initial Borrowing Date;
(vii) A Financial Officer's Certificate for Borrower certifying
attached pro-forma financial statement and pro-forma
compliance certificate in substantially the form of
EXHIBIT F hereto (including all schedules or exhibits) as
of March 31, 1999 based on the assumption the Merger had
been consummated as of such date and including a
certificate from an officer of the General Partner that
there has been no material adverse change in the
information in such pro-forma financial statement and
compliance certificate;
(viii) UCC financing statement, judgment, and tax lien searches
with respect to the General Partner, the Borrower, Weeks
and Weeks LP from the State of Indiana and the Secretary of
State of any state in which any of General Partner,
Borrower, Weeks or Weeks LP owns properties
(notwithstanding anything to the contrary in this
SECTION 4.1(viii), the Borrower may deliver such searches
from states other than Indiana post-closing as provided in
SECTION 7.29);
(ix) Evidence of sufficient Unencumbered Assets (which evidence
if requested by Administrative Agent may include mortgage
releases and title policies)
-26-
to assist the Administrative Agent in determining the
Borrower's compliance with the covenants set forth in
ARTICLE VII herein;
(x) Written money transfer instructions, in substantially the
form of EXHIBIT E hereto, addressed to the Administrative
Agent and signed by an Authorized Officer, together with
such other related money transfer authorizations as the
Administrative Agent may have reasonably requested;
(xi) Evidence that all parties whose consent is required for
Borrower or General Partner to execute the Loan Documents
have provided such consents;
(xii) Evidence that (a) the Merger has been consummated
substantially in accordance with the agreements and
information provided to the Arrangers, (b) no litigation is
pending or threatened in connection with the Merger and (c)
all consents and approvals necessary for consummation of
the Merger from governmental entities, boards, and third
parties have been obtained;
(xiii) Evidence that the Facility complies with the margin
requirements of Regulation U, and other applicable laws and
regulations;
(xiv) Evidence that the following credit facilities extended to
Weeks and its related operating partnerships have been paid
and terminated: (a) that certain $225,000,000 Syndicated
Credit Agreement dated July 1, 1998, (b) that certain
$20,000,000 Swing Credit Agreement dated July 1, 1998 and
(c) that certain $85,000,000 Syndicated Term Loan Agreement
dated December 4, 1998; and
(xv) Such other documents as any Lender or its counsel may have
reasonably requested, the form and substance of which
documents shall be acceptable to the parties and their
respective counsel.
5.2. EACH ADVANCE. The Lenders shall not be required to make any
Advance other than an Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the aggregate amount of
outstanding Advances, unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in ARTICLE VI
are true and correct as of such Borrowing Date with respect
to the General Partner, the Borrower and to any Subsidiary
in existence (as applicable) on such Borrowing Date, except
to the extent any such representation or warranty is stated
to relate solely to an earlier date, in which case such
-27-
representation or warranty shall be true and correct on and
as of such earlier date; and
(iii) All legal matters incident to the making of such Advance
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in SECTIONS 5.2(i) and (ii) have been satisfied. Borrower shall also
furnish a duly completed compliance certificate in substantially the form of
EXHIBIT F hereto (including all schedules or exhibits) as a condition to making
an Advance; provided that the calculations contained therein shall be based on
the most recent quarterly information available.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The General Partner and the Borrower each respectively (unless
otherwise noted) represents and warrants to the Lenders that:
6.1. EXISTENCE. It is duly organized, validly existing and in good
standing under the laws of the State of Indiana, with its principal place of
business in Indianapolis, Indiana and is duly qualified as a foreign corporation
or partnership, properly licensed (if required), in good standing and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted. Each of its Subsidiaries is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
6.2. AUTHORIZATION AND VALIDITY. It has the power and authority and
legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by it of the Loan Documents
and the performance of its obligations thereunder have been duly authorized by
proper proceedings, and the Loan Documents constitute legal, valid and binding
obligations of, respectively, the General Partner or the Borrower enforceable
against such entity in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and general principles of equity.
6.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by it of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on, respectively, the General Partner or the Borrower or any of such
entity's Subsidiaries or such entity's or any Subsidiary's articles of
incorporation, by-laws, certificate of limited partnership or partnership
agreement or the provisions of any indenture, instrument or agreement to which
such entity or any of its Subsidiaries is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default thereunder,
or result in the creation or imposition of any Lien in, of or on the
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Property of such entity or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents.
6.4. FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE. The March 31, 1999
consolidated pro-forma financial statements of the General Partner, the Borrower
and their Subsidiaries heretofore delivered to the Lenders were prepared in
accordance with GAAP in effect on the date such statements were prepared and
fairly present, assuming the Merger had been consummated on or prior to such
date, the consolidated financial condition and operations of General Partner,
the Borrower and their Subsidiaries at such date and the consolidated results of
their operations for the period then ended. There has been no change in the
information in such pro-forma statements which could have a Material Adverse
Effect.
6.5. TAXES. It and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by, respectively, the General Partner or the Borrower or any of its
Subsidiaries except such taxes, if any, as are being contested in good faith and
as to which adequate reserves have been provided. No tax liens have been filed
and no claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the General Partner, the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
6.6. LITIGATION AND GUARANTEE OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of its officers, threatened against or affecting the
General Partner, the Borrower or any of their Subsidiaries which could have a
Material Adverse Effect. It has no material contingent obligations not provided
for or disclosed in the financial statements referred to in SECTION 7.1.
6.7. SUBSIDIARIES. SCHEDULE 1 hereto contains an accurate list of all
of the presently existing Subsidiaries of such entity, setting forth their
respective jurisdictions of incorporation and the percentage of their respective
capital stock owned by it or its Subsidiaries. All of the issued and outstanding
shares of capital stock of such Subsidiaries have been duly authorized and
issued and are fully paid and non-assessable.
6.8. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000. Neither it nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither it nor any other members of the Controlled Group
has withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan.
6.9. ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of such entity or any of its
Subsidiaries to the
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Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of such entity or any of its
Subsidiaries to the Administrative Agent or any Lender will be, true and
accurate (taken as a whole) on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time.
6.10. MARGIN STOCK. It does not hold any margin stock (as defined in
Regulation U).
6.11. MATERIAL AGREEMENTS. Neither it nor any Subsidiary is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could have a Material Adverse Effect. Neither it nor any
Subsidiary is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in (i) any agreement to which
it is a party, which default could have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
6.12. COMPLIANCE WITH LAWS. It and its Subsidiaries have complied, to
the best of their knowledge, with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any
instrumentality or agency thereof, having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property. Neither it
nor any Subsidiary has received any notice to the effect that its operations are
not in material compliance with any of the requirements of applicable federal,
state and local environmental, health and safety statutes and regulations or the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment, which non-compliance or remedial action could
have a Material Adverse Effect.
6.13. OWNERSHIP OF PROPERTIES. On the date of this Agreement, it and
its Subsidiaries will have good title, free of all Liens other than those
permitted by SECTION 7.15, to all of the Property and assets reflected in the
financial statements as owned by it.
6.14. INVESTMENT COMPANY ACT. Neither it nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
6.15. PUBLIC UTILITY HOLDING COMPANY ACT. Neither it nor any Subsidiary
is a "holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
6.16. SOLVENCY. (i) Immediately after the Closing Date and immediately
following the making of each Loan and after giving effect to the application of
the proceeds of such Loans, (a) the fair value of the assets of the General
Partner, the Borrower and their Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities, subordinated, contingent or
otherwise, of the General Partner, the Borrower and their Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of the
General Partner, the Borrower and their Subsidiaries on a consolidated basis
will be greater than the amount that will
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be required to pay the probable liability of the General Partner, the Borrower
and their Subsidiaries on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the General Partner, the Borrower
and their Subsidiaries on a consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the General Partner, the
Borrower and their Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they
are engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.
(ii) It does not intend to, or to permit any of its Subsidiaries to,
and does not believe that it or any of its Subsidiaries will, incur debts beyond
its ability to pay such debts as they mature, taking into account the timing of
and amounts of cash to be received by it or any such Subsidiary and the timing
of the amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
6.17. INSURANCE. It and its Subsidiaries carry insurance on their
Projects with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar projects
in localities where it and its Subsidiaries operate, including, without
limitation:
(i) Property and casualty insurance (including coverage for
flood and other water damage for any Project located
within a 100-year flood plain) in the amount of the
replacement cost of the improvements at the Project;
(ii) Loss of rental income insurance in the amount not less
than one year's gross revenues from the Projects; and
(iii) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
6.18. REIT STATUS. The General Partner is in good standing on the New
York Stock Exchange, is qualified as a real estate investment trust and
currently is in compliance with all applicable provisions of the Code.
6.19. ENVIRONMENTAL MATTERS. Each of the following representations and
warranties is true and correct on and as of the Closing Date except to the
extent that the facts and circumstances giving rise to any such failure to be so
true and correct, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:
(i) To the best knowledge of, respectively, the General
Partner or the Borrower, the Projects of such entity and
its Subsidiaries do not contain, and have not previously
contained, any Materials of Environmental Concern in
amounts or concentrations which constitute or constituted
a violation of, or could reasonably give rise to liability
under, Environmental Laws. In making this statement,
General Partner and
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Borrower are assuming (except to the extent that either of
them has actual knowledge to the contrary) that any Person
handling any Materials of Environmental Concern at any
Project will do so in a reasonable manner and in
accordance with all legal requirements.
(ii) To the best knowledge of such entity, the Projects of such
entity and its Subsidiaries and all operations at the
Projects are in compliance, and have in the last two years
been in compliance, with all applicable Environmental
Laws, and there is no contamination at, under or about the
Projects of such entity and its Subsidiaries, or violation
of any Environmental Law with respect to the Projects of
such entity and its Subsidiaries.
(iii) Neither it nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard
to any of the Projects, nor does it have knowledge or
reason to believe that any such notice will be received or
is being threatened.
(iv) To the best knowledge of such entity, Materials of
Environmental Concern have not been transported or
disposed of from the Projects of such entity and its
Subsidiaries in violation of, or in a manner or to a
location which could reasonably give rise to liability
under, Environmental Laws, nor have any Materials of
Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Projects of such
entity and its Subsidiaries in violation of, or in a
manner that could give rise to liability under, any
applicable Environmental Laws.
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of such entity,
threatened, under any Environmental Law to which such
entity or any of its Subsidiaries is or will be named as a
party with respect to the Projects of such entity and its
Subsidiaries, nor are there any consent decrees or other
decrees, consent orders, administrative order or other
orders, or other administrative of judicial requirements
outstanding under any Environmental Law with respect to
the Projects of such entity and its Subsidiaries.
(vi) To the best knowledge of such entity, there has been no
release or threat of release of Materials of Environmental
Concern at or from the Projects of such entity and its
Subsidiaries, or arising from or related to the operations
of such entity and its Subsidiaries in connection with the
Projects in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.20. UNENCUMBERED ASSETS. SCHEDULE 3 hereto contains a complete and
accurate description of Unencumbered Assets as of the Closing Date.
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6.21. YEAR 2000 REPRESENTATION AND WARRANTY. The Borrower has conducted
a comprehensive review and assessment of the Borrower's computer applications
and made inquiry of the Borrower's key suppliers, vendors and customers with
respect to the "year 2000 problem" (that is, the risk that computer applications
may not be able to properly perform date-sensitive functions after December 31,
1999) and, based on that review and inquiry, the Borrower does not believe the
year 2000 problem will result in a material adverse change in the Borrower's
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the Loan.
6.22. MERGER. The Merger has been consummated substantially in
accordance with the agreements and information provided to the Arrangers, no
litigation is pending or threatened in connection with the Merger and all
consents and approvals necessary for consummation of the Merger from
governmental entities, boards, and third parties have been obtained.
ARTICLE VII
COVENANTS
During the term of this Agreement, unless, with respect to SECTIONS
7.20(iii), (iv) and (v), the Required Lenders including the Arrangers and, with
respect to all other Sections in this ARTICLE VII, the Required Lenders shall
otherwise consent in writing:
7.1. FINANCIAL REPORTING. The General Partner and the Borrower will
maintain, for themselves and each Subsidiary, a system of accounting established
and administered in accordance with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not later than 45
days after the close of each fiscal quarter, for the
General Partner (consolidated with the Borrower and their
Subsidiaries), an unaudited consolidated balance sheet as
of the close of each such period and the related unaudited
consolidated statements of income and retained earnings and
of cash flows of the General Partner, the Borrower and
their Subsidiaries for such period and the portion of the
fiscal year through the end of such period, setting forth
in each case in comparative form the figures for the
previous year, all certified by the General Partner's chief
financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45
days after the close of each fiscal quarter, for the
General Partner, the Borrower and their Subsidiaries,
related reports in form and substance satisfactory to the
Lenders, all certified by the entity's chief financial
officer or chief accounting officer, including a statement
of Funds From Operations, a description of Unencumbered
Assets, a listing of capital expenditures, a report listing
and describing all newly acquired Projects, including their
Property Operating Income, cost and secured or unsecured
Indebtedness assumed in connection with such acquisition,
if any, summary Project
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information for all Projects, including, without
limitation, their Property Operating Income, occupancy
rates, square footage, property type and date acquired or
built, and such other information as may be requested;
(iii) As soon as available, but in any event not later than 90
days after the close of each fiscal year, for the General
Partner (consolidated with the Borrower and their
Subsidiaries), audited financial statements, including a
consolidated balance sheet as at the end of such year and
the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous
year, reported on by KPMG Peat Marwick LLP (or other
independent certified public accountants of nationally
recognized standing acceptable to Administrative Agent)
without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the
audit;
(iv) As soon as available, but in any event not later than 90
days after the close of each fiscal year, for the General
Partner, the Borrower and their Subsidiaries, related
reports in form and substance satisfactory to the Lenders,
certified by the entity's chief financial officer or chief
accounting officer, including reports containing taxable
income and Property Operating Income for each individual
property;
(v) Together with the quarterly and annual financial statements
required hereunder, a compliance certificate in
substantially the form of EXHIBIT F hereto signed by the
General Partner's and the Borrower's chief financial
officers or chief accounting officers showing the
calculations and computations necessary to determine
compliance with this Agreement and stating that no Default
or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof;
(vi) As soon as possible and in any event within 10 days after
the General Partner or the Borrower knows that any
Reportable Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of such
entity, describing said Reportable Event and the action
which such entity proposes to take with respect thereto;
(vii) As soon as possible and in any event within 10 days after
receipt by the General Partner or the Borrower, a copy of
(a) any notice or claim to the effect that the General
Partner, the Borrower or any of their Subsidiaries is or
may be liable to any Person as a result of the release by
such entity, any of its Subsidiaries, or any other Person
of any toxic or hazardous waste or substance into the
environment, and (b) any notice alleging any violation of
any federal, state or local environmental, health or safety
law or regulation by the General Partner or the Borrower or
any of their Subsidiaries, which, in either case, could
have a Material Adverse Effect;
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(viii) Promptly upon the furnishing thereof to the shareholders of
the General Partner or the partners of the Borrower, copies
of all financial statements, reports and proxy statements
so furnished;
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or
other reports and any other public information which the
General Partner, the Borrower or any of their Subsidiaries
files with the Securities Exchange Commission;
(x) Promptly upon the distribution thereof to the press or the
public, copies of all press releases; and
(xi) Such other information (including, without limitation,
financial statements for the Borrower and non-financial
information) as the Administrative Agent or any Lender may
from time to time reasonably request.
Notwithstanding anything to the contrary contained in this SECTION 7.1,
all deliveries required for the quarter ended June 30, 1999 shall include, in
addition to the above requirements, pro-formas based on the assumption that the
Merger had been consummated as of such date.
7.2. USE OF PROCEEDS. The General Partner and the Borrower will, and
will cause each of their Subsidiaries to, use the proceeds of the Advances to
repay the existing revolving bank credit agreements of Weeks LP, and then for
the general business purposes of the Borrower, including working capital needs
and interim financing for property acquisitions of new Projects, construction of
new improvements or expansions of existing improvements on Projects, and to
repay outstanding Advances. The General Partner and the Borrower will not, nor
will they permit any Subsidiary to, use any of the proceeds of the Advances (i)
to purchase or carry any "margin stock" (as defined in Regulation U) or (ii) to
fund any purchase of, or offer for, any Capital Stock of any Person, unless such
Person has consented to such offer prior to any public announcements relating
thereto and the Required Lenders have consented to such use of the proceeds of
such Advance.
7.3. NOTICE OF DEFAULT. The General Partner and the Borrower will give,
and will cause each of their Subsidiaries to give, prompt notice in writing to
the Lenders of the occurrence of (i) any Default or Unmatured Default and (ii)
of any other development, financial or otherwise, which could have a Material
Adverse Effect.
7.4. CONDUCT OF BUSINESS. The General Partner and the Borrower will do,
and will cause each of their Subsidiaries to do, all things necessary to remain
duly incorporated and/or duly qualified, validly existing and in good standing
as a real estate investment trust, corporation, general partnership or limited
partnership, as the case may be, in its jurisdiction of incorporation/formation
and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted and to carry on and conduct its
businesses in substantially the same manner as it is presently conducted and,
specifically, neither the General Partner, the Borrower nor their respective
Subsidiaries will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of office, industrial
and retail properties and ancillary businesses specifically related thereto,
except that the
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Borrower and its Subsidiaries may invest in (i) land, (ii) non-office/
industrial/retail property holdings, (iii) stock holdings, (iv) mortgages and
(v) joint ventures and partnerships, PROVIDED that the total investment in any
one of the first four of the foregoing categories does not exceed ten percent
(10%) of Market Capitalization, the total investment in the fifth category
(joint ventures and partnerships) does not exceed 20% of Market Capitalization,
and the total investment in all of the foregoing investment categories in the
aggregate is less than or equal to twenty-five percent (25%) of Market
Capitalization. For the purposes of this SECTION 7.4, joint ventures and
partnerships shall be valued in accordance with GAAP, non-revenue generating
investments such as land and stock holdings shall be valued at the lower of
acquisition cost or market value, and the value of all other investments shall
be determined by capitalizing Property Operating Income from these assets at a
rate of 9.5%. In the event of any disagreement as to how to value an investment,
the judgment of the Administrative Agent shall prevail.
7.5. TAXES. The General Partner and the Borrower will pay, and will
cause each of their Subsidiaries to pay, when due all taxes, assessments and
governmental charges and levies upon them of their income, profits or Projects,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside.
7.6. INSURANCE. The General Partner and the Borrower will, and will
cause each of their Subsidiaries to, maintain with financially sound and
reputable insurance companies insurance on all their Property in such amounts
and covering such risks as is consistent with sound business practice, and the
General Partner and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.
7.7. COMPLIANCE WITH LAWS. The General Partner and the Borrower will,
and will cause each of their Subsidiaries to, comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
they may be subject.
7.8. MAINTENANCE OF PROPERTIES. The General Partner and the Borrower
will, and will cause each of their Subsidiaries to, do all things necessary to
maintain, preserve, protect and keep its Property in good repair, working order
and condition, and make all necessary and proper repairs, renewals and
replacements so that their businesses carried on in connection therewith may be
properly conducted at all times.
7.9. INSPECTION. The General Partner and the Borrower will, and will
cause each of their Subsidiaries to, permit the Lenders, by their respective
representatives and agents, to inspect any of the Projects, corporate books and
financial records of the General Partner, the Borrower and each of their
Subsidiaries, to examine and make copies of the books of accounts and other
financial records of the General Partner, the Borrower and each of their
Subsidiaries, and to discuss the affairs, finances and accounts of the General
Partner, the Borrower and each of their Subsidiaries, and to be advised as to
the same by, their respective officers at such reasonable times and intervals as
the Lenders may designate.
7.10. MAINTENANCE OF STATUS. The General Partner shall at all times
(i) remain a corporation listed and in good standing on the New York Stock
Exchange, and (ii) maintain its status as a real estate investment trust in
compliance with all applicable provisions of the Code.
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7.11. DIVIDENDS. Provided there is not a continuing Default under
SECTION 8.1 or Section 8.2, and there is not a continuing Default under
SECTION 8.3 relating to a breach of any of the covenants contained in
SECTION 7.20, the General Partner and its Subsidiaries shall be permitted to
declare and pay dividends on their Capital Stock from time to time in amounts
determined by the General Partner, PROVIDED, HOWEVER, that subject to the terms
of the next sentence, in no event shall the General Partner or any of its
Subsidiaries declare or pay dividends on their Capital Stock if dividends paid
in any period of four fiscal quarters, in the aggregate, would exceed 90% of
Funds From Operations for such period. Notwithstanding the foregoing, the
General Partner shall be permitted to distribute whatever amount of dividends is
necessary to maintain its tax status as a real estate investment trust, PROVIDED
there is NOT a continuing Default under SECTIONS 8.1 or 8.2.
7.12. MERGER; SALE OF ASSETS. The General Partner and the Borrower will
not, nor will they permit any of their Subsidiaries to, enter into any merger,
consolidation, reorganization or liquidation or transfer or otherwise dispose of
all or a Substantial Portion of their Property, except for such transactions
that occur between Wholly-Owned Subsidiaries, PROVIDED, HOWEVER, the General
Partner or the Borrower may merge with or acquire other companies as
partnerships so long as:
(i) After giving effect to such merger or acquisition, no
provision of this Agreement will have been violated;
(ii) the General Partner and the Borrower will be surviving
entities; and
(iii) such merger is not accomplished through a hostile
takeover.
The Borrower will notify all of the Lenders of all material acquisitions,
dispositions, mergers or asset purchases regardless of whether or not the
Required Lenders must first give their written consent.
7.13. GENERAL PARTNER'S OWNERSHIP AND CONTROL OF BORROWER. The General
Partner will not relinquish, and will not allow any reduction in, its ownership
or control of the Borrower and will not allow or suffer to exist any pledge,
other encumbrance or the conversion to limited partnership interests of any of
the general partnership interests in the Borrower; PROVIDED that (i) the General
Partner's ownership of the Borrower may be reduced to 67% by the issuance of
additional limited partnership units so long as the General Partner remains the
sole general partner of Borrower and (ii) the General Partner's ownership of the
Borrower may be reduced to and/or below 67% by the conversion of a portion of
the General Partner's general partnership interest in the Borrower into limited
partnership interests and the transfer of such interests to a wholly owned
Subsidiary of the General Partner so long as (a) the General Partner remains the
sole general partner of Borrower and (b) such Subsidiary is a Subsidiary
Guarantor and does not own any assets other than its limited partnership
interest in the Borrower.
7.14. SALE AND LEASEBACK. The General Partner and the Borrower will
not, nor will they permit any of their Subsidiaries to, sell or transfer any of
its Projects in order to concurrently or subsequently lease as lessee such or
similar Projects.
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7.15. LIENS. The General Partner and the Borrower will not, nor will
they permit any of their Subsidiaries to, create, incur, or suffer to exist any
Lien in, of or on the Property of the General Partner, the Borrower or any of
their Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on their Property if the same shall not at the time
be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate
proceedings and for which adequate reserves shall have
been set aside on their books;
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside
on its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits,
or similar legislation;
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the General Partner, the
Borrower or their Subsidiaries;
(v) Liens existing on the date hereof and described in
SCHEDULE 2 hereto; and
(vi) Liens arising in connection with any Indebtedness
permitted hereunder to the extent such Liens will not
result in a violation of any of the provisions of this
Agreement.
Liens permitted pursuant to this SECTION 7.15 shall be deemed to be
"PERMITTED LIENS".
7.16. AFFILIATES. The General Partner and the Borrower will not, nor
will they permit any of their Subsidiaries to, enter into any transaction
(including, without limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except in the ordinary
course of business and pursuant to the reasonable requirements of the General
Partner's, the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the General Partner, the Borrower or such
Subsidiary than the General Partner, the Borrower or such Subsidiary would
obtain in a comparable arms-length transaction.
7.17. INTEREST RATE HEDGING. The General Partner and the Borrower will
not enter into or remain liable upon, nor will they permit any Subsidiary to
enter into or remain liable upon, any agreements, devices or arrangements
designed to protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such party's
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assets, liabilities or exchange transactions, including, but not limited to,
interest rate exchange agreements, forward currency exchange agreements,
interest rate cap or collar protection agreements, forward rate currency or
interest rate options unless such agreement, device or arrangement was entered
into by the General Partner or the Borrower in the ordinary course of its
business for the purpose of hedging interest rate risk to the General Partner or
the Borrower.
7.18. VARIABLE INTEREST INDEBTEDNESS. The General Partner shall not at
any time permit the outstanding principal balance of Indebtedness of the General
Partner and the Borrower and their Subsidiaries on a consolidated basis which
bears interest at an interest rate that is not fixed through the maturity date
of such Indebtedness to exceed $775,000,000.
7.19. CONSOLIDATED NET WORTH. The General Partner, as of the last day
of any fiscal quarter, shall maintain a Consolidated Net Worth of not less than
the sum of (i) an amount equal to eighty percent (80%) of the pro forma
Consolidated Net Worth as of June 30, 1999, based on the assumtion the merger
had been completed as of such date, but in no event less than $2,248,000,000,
plus (ii) seventy-five percent (75%) of the aggregate proceeds received by the
General Partner or the Borrower (net of customary related fees and expenses) in
connection with any offering of stock in the General Partner or partnership
interests in the Borrower after the Closing Date.
7.20. INDEBTEDNESS AND CASH FLOW COVENANTS. The General Partner on a
consolidated basis with the Borrower and their Subsidiaries shall not, as of the
last day of any fiscal quarter, permit:
(i) the ratio of EBITDA to Interest Expense to be less than
2.25 to 1.0 for the quarter then ended;
(ii) the ratio of EBITDA to Fixed Charges to be less than 1.75
to 1.0 for the quarter then ended;
(iii) Total Liabilities to exceed fifty-five percent (55%) of
Market Capitalization;
(iv) Consolidated Total Indebtedness to exceed fifty percent
(50%) of Market Capitalization;
(v) the Value of Unencumbered Assets to be less than
1.85 times the Consolidated Senior Unsecured Indebtedness;
(vi) the ratio obtained by dividing: (a) the Property Operating
Income from all Unencumbered Assets by (b) Debt Service on
Consolidated Unsecured Indebtedness to be less than 2.00 to
1.0 for the quarter then ended; or
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(vii) Consolidated Secured Indebtedness to exceed thirty-five
percent (35%) of Market Capitalization.
7.21. ENVIRONMENTAL MATTERS. The General Partner and the Borrower
will and will cause each of their Subsidiaries to:
(i) comply with, and use its best efforts to ensure compliance by
all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and use its best efforts
to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws,
except to the extent that failure to do so could not be reasonably
expected to have a Material Adverse Effect;
(ii) conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material respects
with all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws, except to the extent that (a) the same
are being contested in good faith by appropriate proceedings and the
pendency of such proceedings could not be reasonably expected to have
a Material Adverse Effect, or (b) the General Partner has determined
in good faith that contesting the same is not in the best interests of
the General Partner, the Borrower and their Subsidiaries and the
failure to contest the same could not be reasonably expected to have a
Material Adverse Effect;
(iii) defend, indemnify and hold harmless the Administrative
Agent and each Lender, and their respective employees, agents,
officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Laws
applicable to the operations of the General Partner, the Borrower,
their Subsidiaries or the Projects, or any orders, requirements or
demands of Governmental Authorities related thereto, including,
without limitation, attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking
indemnification therefor; and
(iv) prior to the acquisition of a new Project after the Closing
Date, perform or cause to be performed an environmental investigation,
which investigation shall at a minimum comply with the specifications
and procedures attached hereto as EXHIBIT G.
The indemnity contained in (iii) above shall continue in full force and effect
regardless of the termination of this Agreement. In connection with any
investigation pursuant to (iv) above, Borrower shall cause to be prepared a
report of such investigation, to be made available to any Lenders upon request,
for informational purposes and to assure compliance with the specifications and
procedures.
7.22. CONTROL OF THE GENERAL PARTNER. The General Partner's management
shall directly or indirectly control the ownership of a minimum 2,000,000 common
shares of the General
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Partner (or equivalent operating partnership units exchangeable for common
shares), adjusted for stock splits, and the General Partner's management and
directors shall directly or indirectly control ownership of a minimum 3,000,000
common shares of the General Partner (or equivalent operating partnership units
exchangeable for common shares), adjusted for stock splits.
7.23. SENIOR MANAGEMENT OF BORROWER. In the event that less than three
of the following senior managers: ▇▇▇▇▇▇ ▇▇▇▇▇▇, A. ▇▇▇ ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ are actively involved in the management
of the Borrower, the Borrower will replace, at a minimum, all but one of the
senior managers who have left with individuals who are satisfactory to the
Required Lenders within 120 days after the date the second such senior manager
ceases to be actively involved in the management of the Borrower.
7.24. BORROWER'S PARTNERSHIP AGREEMENT. The General Partner shall not
consent to any changes to Borrower's partnership agreement without the prior
written consent of the Arrangers.
7.25. GENERAL PARTNER'S ASSETS. The General Partner shall not invest in
or own any material assets directly other than its partnership interest in
Borrower.
7.26. NOTICE OF RATING CHANGE. The Borrower shall notify the
Administrative Agent promptly if there is any change in the long term unsecured
debt rating from ▇▇▇▇▇'▇, Duff & ▇▇▇▇▇▇ or S&P of either the General Partner or
the Borrower.
7.27. YEAR 2000 COMPLIANCE. The Borrower will promptly notify the
Administrative Agent in the event the Borrower discovers or determines that any
computer application (including those of its suppliers and vendors) that is
material to its or any of its Subsidiaries' business and operations will not be
Year 2000 compliant on a timely basis, except to the extent that such failure
could not reasonably be expected to have a Material Adverse Effect.
7.28. DELIVERY OF SUBSIDIARY GUARANTIES. Borrower may elect to cause
any of its Subsidiaries to execute and deliver to the Administrative Agent a
Subsidiary Guaranty.
7.29. POST-CLOSING DELIVERIES. Within five (5) days after the date
hereof, the Borrower shall deliver to the Administrative Agent with sufficient
copies for the Lenders, certified copies of the articles of incorporation of the
General Partner, the certificate of limited partnership of the Borrower and the
certificate of merger of Borrower, each with all amendments and certified by the
appropriate governmental officer of the State of Indiana as of a recent date.
Within five (5) days after the date hereof, the Borrower shall deliver to the
Administrative Agent with sufficient copies for the Lenders, certificates of
good standing for the General Partner and the Borrower, certified by the
appropriate governmental officer of the State of Indiana, and foreign
qualification certificates for the General Partner and the Borrower, certified
by the appropriate governmental officer, for each jurisdiction where the failure
to so qualify or be licensed (if required) would have a Material Adverse Effect.
Within fifteen (15) days after the date hereof, the Borrower shall deliver to
the Administrative Agent with sufficient copies for the Lenders, UCC financing
statement, judgment, and tax lien searches with respect to the General Partner,
the Borrower, Weeks and Weeks LP from the Secretary of State of the states in
which the General Partner, the Borrower, Weeks or Weeks LP owns properties to
the extent such searches are not available on the date hereof.
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ARTICLE VIII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
8.1. Nonpayment of any principal payment on any Note when due.
8.2. Nonpayment of interest upon any Note or of any Facility Fee or
other payment Obligations under any of the Loan Documents within five (5)
Business Days after the same becomes due.
8.3. The breach of any of the terms or provisions of SECTIONS 7.2, 7.10
through 7.20, 7.23 through 7.25 and 7.29.
8.4. Any representation or warranty made or deemed made by or on behalf
of the General Partner, the Borrower or any of their Subsidiaries to the Lenders
or the Administrative Agent under or in connection with this Agreement, any
Loan, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
8.5. The breach (other than a breach which constitutes a Default under
SECTION 8.1, 8.2, 8.3 or 8.4) of any of the terms or provisions of this
Agreement which is not remedied within fifteen (15) days after written notice
from the Administrative Agent or any Lender.
8.6. Failure of the General Partner, the Borrower or any of their
Subsidiaries to pay when due any Indebtedness aggregating in excess of
$5,000,000 for which liability is not limited to specific pledged collateral.
8.7. The General Partner, the Borrower or any Subsidiary having more
than $10,000,000 of Equity Value shall (i) have an order for relief entered with
respect to it under the Federal bankruptcy laws as now or hereafter in effect,
(ii) make an assignment for the benefit of creditors, (iii) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any Substantial Portion of
its Property, (iv) institute any proceeding seeking an order for relief under
the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any
corporate action to authorize or effect any of the foregoing actions set forth
in this SECTION 8.7, (vi) fail to contest in good faith any appointment or
proceeding described in SECTION 8.8 or (vii) not pay, or admit in writing its
inability to pay, its debts generally as they become due.
8.8. A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the General Partner, the Borrower or any Subsidiary
having more than $10,000,000 of Equity Value or any Substantial Portion of its
Property, or a proceeding described in SECTION 8.7(iv)
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shall be instituted against the General Partner, the Borrower or any such
Subsidiary and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of thirty (30) consecutive days.
8.9. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of (each a "CONDEMNATION"),
all or any portion of the Projects of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its Subsidiaries
so condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion of their Property.
8.10. The General Partner, the Borrower or any of their Subsidiaries
shall fail within sixty (60) days to pay, bond or otherwise discharge any
judgments or orders for the payment of money in an amount which, when added to
all other judgments or orders outstanding against the General Partner, the
Borrower or any Subsidiary would exceed $10,000,000 in the aggregate, which have
not been stayed on appeal or otherwise appropriately contested in good faith.
8.11. The General Partner, the Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred withdrawal liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the General Partner, the Borrower or any other member of
the Controlled Group as withdrawal liability (determined as of the date of such
notification), exceeds $250,000 or requires payments exceeding $100,000 per
annum.
8.12. The General Partner, the Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the General Partner, the
Borrower and the other members of the Controlled Group (taken as a whole) to all
Multiemployer Plans which are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the respective plan years of each such Multiemployer Plan immediately
preceding the plan year in which the reorganization or termination occurs by an
amount exceeding $250,000.
8.13. Failure to remediate within the time period permitted by law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), material environmental problems
related to Projects of the Borrower and its Subsidiaries if the affected
Projects have an aggregate book value in excess of $20,000,000.
8.14. The occurrence of any default under any Loan Document or the
breach of any of the terms or provisions of any Loan Document, which default or
breach continues beyond any period of grace therein provided.
8.15. The revocation or attempted revocation of the Guaranty.
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8.16. The occurrence of a default under (i) that certain $450,000,000
Second Amended and Restated Revolving Credit Agreement dated as of September 24,
1998 among the Borrower, the General Partner, First Chicago, individually and as
administrative agent, and various other lenders and/or (ii) that certain
$85,000,000 Unsecured Term Loan dated as of the date hereof among Borrower,
Wachovia Bank, N.A. as agent, and various other lenders.
ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. ACCELERATION. If any Default described in SECTION 8.7 or 8.8
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Administrative Agent or any Lender. If any other Default occurs, the
Required Lenders may terminate or suspend the obligations of the Lenders to make
Loans hereunder or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives.
If, within ten (10) days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
SECTION 8.7 or 8.8 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations shall have been obtained or entered,
the Required Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
9.2. AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; PROVIDED, HOWEVER, that no such supplemental
agreement shall, without the consent of the Arrangers, waive any Default under,
or modify or amend Sections 7.20(iii), (iv) or (v); and PROVIDED, FURTHER,
HOWEVER, that no such supplemental agreement shall, without the consent of all
Lenders:
(i) Extend the Facility Termination Date (other than pursuant to
SECTION 2.25 of this Agreement) or forgive all or any
portion of the principal amount of any Loan or accrued
interest thereon or the Facility Fee, reduce the Applicable
Margins on the underlying interest rate options or otherwise
modify or add to such interest rate options, or extend the
time of payment of any of the Obligations.
(ii) Release the General Partner from the Guaranty.
(iii) Reduce the percentage specified in the definition of
Required Lenders.
(iv) Increase the amount of the Aggregate Commitment.
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(v) Permit the Borrower to assign or allow another Person to
assume its rights under this Agreement.
(vi) Amend this SECTION 9.2.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, and no amendment increasing the Commitment of any
Lender shall be effective without the written consent of such Lender.
9.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to SECTION 9.2, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE X
GENERAL PROVISIONS
10.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of the Notes
and the making of the Loans herein contemplated.
10.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. TAXES. Any taxes (excluding federal, state and local income or
franchise or other taxes on the overall net income of any Lender) or other
similar assessments or charges made by any governmental or revenue authority in
respect of the Loan Documents shall be paid by the Borrower, together with
interest and penalties, if any.
10.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the General Partner, the Administrative
Agent and the Lenders and supersede all prior commitments, agreements and
understandings among the
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Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof, except for the agreement of the Borrower to pay certain fees to
the Administrative Agent and the agreement of the Administrative Agent to pay
certain fees to the Lenders.
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
10.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Indemnified Parties on demand for any costs, internal charges and reasonable
out-of-pocket expenses (including, without limitation, all reasonable fees for
consultants and reasonable fees and expenses for attorneys for the Indemnified
Parties, which attorneys may be employees of the Indemnified Parties) paid or
incurred by the Indemnified Parties (whether in their capacity as arrangers, or,
in the case of First Chicago, in its capacity as Administrative Agent) in
connection with the preparation, negotiation, execution, delivery, review,
amendment, modification, and administration of the Loan Documents. The Borrower
also agrees to reimburse the Indemnified Parties and the Lenders for any costs,
internal charges and reasonable out-of-pocket expenses (including, without
limitation, all reasonable fees and expenses for attorneys for the Indemnified
Parties and the Lenders, which attorneys may be employees of the Indemnified
Parties or the Lenders) paid or incurred by the Indemnified Parties (whether in
their capacity as arrangers, or, in the case of First Chicago, in its capacity
as Administrative Agent) or any Lender in connection with the collection and
enforcement of the Loan Documents (including, without limitation, any workout).
The Borrower further agrees to indemnify the Indemnified Parties and each Lender
and their directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and reasonable expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
such entity is a party thereto) which any of them may pay or incur arising out
of or relating to this Agreement, the other Loan Documents, the Projects, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder. The obligations of
the Borrower under this SECTION 10.7 shall survive the termination of this
Agreement.
10.8. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
10.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that
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jurisdiction or the operation, enforceability, or validity of that provision
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
10.11. NONLIABILITY OF LENDERS. The relationship between the General
Partner and the Borrower, on the one hand, and the Lenders, the Arrangers and
the Administrative Agent, on the other, shall be solely that of borrower and
lender. Neither the Administrative Agent, the Arrangers nor any Lender shall
have any fiduciary responsibilities to the General Partner and the Borrower.
Neither the Administrative Agent, the Arrangers nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations.
10.12. PUBLICITY. The Lenders shall have the right to do a tombstone
publicizing the transaction contemplated hereby without the consent of the
Borrower or General Partner.
10.13. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.14. CONSENT TO JURISDICTION. THE GENERAL PARTNER AND THE BORROWER
EACH HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS AND THE
GENERAL PARTNER AND THE BORROWER EACH HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE GENERAL
PARTNER OR THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE GENERAL PARTNER OR THE BORROWER AGAINST THE ADMINISTRATIVE
AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
10.15. WAIVER OF JURY TRIAL. THE GENERAL PARTNER, THE BORROWER, THE
ADMINISTRATIVE AGENT, THE ARRANGERS AND EACH LENDER HEREBY WAIVE TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
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ARTICLE XI
THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS
11.1. APPOINTMENT. Subject to the provisions of SECTION 11.11, The
First National Bank of Chicago is hereby appointed Administrative Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the agent of such
Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this ARTICLE XI. The Administrative Agent shall not have
a fiduciary relationship in respect of the Borrower or any Lender by reason of
this Agreement.
11.2. POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
11.3. GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct.
11.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in ARTICLE V, except receipt of items required to be delivered to the
Administrative Agent; (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; or (v) the value, sufficiency, creation, perfection or priority of
any interest in any collateral security. The Administrative Agent shall have no
duty to disclose to the Lenders information that is not required to be furnished
by the Borrower to the Administrative Agent at such time, but is voluntarily
furnished by the Borrower to the Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity).
11.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all holders of Notes. The Administrative Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
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11.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or through employees, agents, and attorneys-in-fact and so long
as it exercises reasonable care in the selection of such parties, the
Administrative Agent shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such parties. The Administrative Agent shall be entitled to
advice of counsel concerning all matters pertaining to the agency hereby created
and its duties hereunder and under any other Loan Document.
11.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (i) for any reasonable amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents including reasonable
out-of-pocket expenses in connection with the preparation, execution, delivery
of the Loan Documents, (ii) for any other reasonable out-of-pocket expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection
with the administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, PROVIDED
that no Lender shall be liable for (i) any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of the Administrative
Agent, or (ii) any costs or expenses of the Administrative Agent's in-house
legal staff and personnel. The obligations of the Lenders under this SECTION
11.8 shall survive payment of the Obligations and termination of this Agreement.
11.9. RIGHTS AS A LENDER. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers and the
same duties and obligations hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not the Administrative Agent,
and the term "Lender" or "Lenders" shall, at any time when the Administrative
Agent is a Lender, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person.
11.10. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the
-49-
financial statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
11.11. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, and the Administrative Agent shall be deemed to have automatically
resigned if it is no longer a Lender, such resignation in either case to be
effective upon the appointment of a successor Administrative Agent or, if no
successor Administrative Agent has been appointed, forty-five days after the
retiring Administrative Agent gives notice of its intention to resign or ceases
to be a Lender, as the case may be. The Administrative Agent may be removed at
any time with good cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent, PROVIDED, HOWEVER, that ▇▇▇▇▇ Fargo Bank,
National Association (but not its successors and assigns) may, at its option,
appoint itself as successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders within thirty days
after the resigning Administrative Agent's giving notice of its intention to
resign, then the resigning Administrative Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Administrative Agent. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed within 45 days, the Lenders shall
perform all the duties of the Administrative Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment. Any such successor
Administrative Agent shall be a commercial bank (or a subsidiary thereof) having
capital and retained earnings of at least $500,000,000, except that if the
successor Administrative Agent is a subsidiary of a bank, such capital and
retained earnings requirement shall apply only to the parent bank. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or removed
Administrative Agent and the successor Administrative Agent shall pro rate any
agency fees, and the resigning or removed Administrative Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this ARTICLE XI shall continue in effect
for the benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents.
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11.12. NOTICE OF DEFAULTS. If a Lender becomes aware of a Default or
Unmatured Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Unmatured Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
11.13. REQUESTS FOR APPROVAL. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten Business Days (or sooner if such notice specifies a shorter period
for responses based on Administrative Agent's good faith determination that
circumstances exist warranting its request for an earlier response) after such
written request from the Administrative Agent. If the Lender does not so
respond, that Lender shall be deemed to have approved the request, provided the
initial notice references such deemed approval.
11.14. COPIES OF DOCUMENTS. Within fifteen Business Days after a
request by a Lender to the Administrative Agent for documents furnished to the
Administrative Agent by the Borrower, the Administrative Agent shall provide
copies of such documents to such Lender.
11.15. DEFAULTING LENDERS. At such time as a Lender becomes a
Defaulting Lender, such Defaulting Lender's right to vote on matters which are
subject to the consent or approval of the Required Lenders, each affected Lender
or all Lenders shall be immediately suspended until such time as the Lender is
no longer a Defaulting Lender. If a Defaulting Lender has failed to fund its pro
rata share of any Advance and until such time as such Defaulting Lender
subsequently funds its pro rata share of such Advance, all Obligations owing to
such Defaulting Lender hereunder shall be subordinated in right of payment, as
provided in the following sentence, to the prior payment in full of all
principal of, interest on and fees relating to the Loans funded by the other
Lenders in connection with any such Advance in which the Defaulting Lender has
not funded its pro rata share (such principal, interest and fees being referred
to as "Senior Loans" for the purposes of this section). All amounts paid by the
Borrower and otherwise due to be applied to the Obligations owing to such
Defaulting Lender pursuant to the terms hereof shall be distributed by the
Administrative Agent to the other Lenders in accordance with their respective
pro rata shares (recalculated for the purposes hereof to exclude the Defaulting
Lender) until all Senior Loans have been paid in full. After the Senior Loans
have been paid in full equitable adjustments will be made in connection with
future payments by the Borrower to the extent a portion of the Senior Loans had
been repaid with amounts that otherwise would have been distributed to a
Defaulting Lender but for the operation of this SECTION 11.15. This provision
governs only the relationship among the Administrative Agent, each Defaulting
Lender and the other Lenders; nothing hereunder shall limit the obligation of
the Borrower to repay all Loans in accordance with the terms of this Agreement.
The provisions of this section shall apply and be effective regardless of
whether a Default occurs and is continuing, and notwithstanding (i) any other
provision of this Agreement to the contrary, (ii) any instruction of the
Borrower as to its desired application of payments or (iii) the suspension of
such Defaulting Lender's right to vote on matters which are subject to the
consent or approval of the Required Lenders or all Lenders.
-51-
ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default or Unmatured Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender to or for the credit or account of the Borrower may be offset and
applied toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due. The Lenders agree
for the benefit of each other Lender (but not the Borrower) that any set-off
shall first be applied to the Obligations before being applied to any other
Indebtedness owing to such Lender.
12.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with SECTION 13.3. Notwithstanding clause (ii) of this SECTION 13.1, any Lender
may at any time, without the consent of the Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement and its
Notes to a Federal Reserve Bank; provided, however, that no such assignment
shall release the transferor Lender from its obligations hereunder. The
Administrative Agent may treat the payee of any Note as the owner thereof for
all purposes hereof unless and until such payee complies with SECTION 13.3 in
the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Administrative Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
-52-
13.2. PARTICIPATIONS.
13.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender, in the
ordinary course of its business and in accordance with applicable law,
at any time, may sell participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender under the Loan Documents.
Any Person to whom such a participating interest is sold is a
"Participant". In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder
of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating
interests, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
13.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment or postpones any
date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Commitment or releases any
guarantor of any such Loan or releases any substantial portion of
collateral, if any, securing such Loan.
13.2.3 BENEFIT OF SETOFF. The General Partner and the Borrower
each agrees that each Participant shall be deemed to have the right of
setoff provided in SECTION 12.1 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent
as if the amount of its participating interest were owing directly to
it as a Lender under the Loan Documents, provided that each Lender
shall retain the right of setoff provided in SECTION 12.1 with respect
to the amount of participating interests sold to each Participant. The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in SECTION 13.1, agrees to
share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with
SECTION 12.2 as if each Participant were a Lender.
13.3. ASSIGNMENTS.
13.3.1 PERMITTED ASSIGNMENTS. Any Lender, in the ordinary course
of its business and in accordance with applicable law, at any time,
may assign all or any portion (greater than or equal to $5,000,000 per
assignee) of its rights and obligations under the Loan Documents. Any
Person to whom such rights and obligations are assigned is a
"Purchaser". Such assignment shall be substantially in the form of
EXHIBIT H hereto or in such other form as may be agreed to by the
parties thereto.
-53-
The consent of the Administrative Agent shall be required prior
to an assignment becoming effective with respect to a Purchaser which
is not a Lender or an Affiliate thereof, except no consent shall be
required if a Default exists. Such consent shall not be unreasonably
withheld.
13.3.2 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the
form attached as EXHIBIT I to EXHIBIT H hereto (a "NOTICE OF
ASSIGNMENT"), together with any consents required by Section 13.3.1,
and (ii) payment of a $3,000 fee to the Administrative Agent for
processing such assignment (unless the assignment is to an affiliate
of the Lender in which case no fee shall be charged), such assignment
shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation
by the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment and Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or
action by the Borrower, the Lenders or the Administrative Agent shall
be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this SECTION 13.3.2, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued
to such Purchaser, in each case in principal amounts reflecting their
Commitment, as adjusted pursuant to such assignment.
13.4. INTENTIONALLY OMITTED
13.5. DISSEMINATION OF INFORMATION. The General Partner and the
Borrower authorize each Lender to disclose to any Participant or Purchaser or
any other Person acquiring an interest in the Loan Documents by operation of law
(each a "TRANSFEREE") and any prospective Transferee any and all information in
such Lender's possession concerning the creditworthiness of the General Partner,
the Borrower and their Subsidiaries.
13.6. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.22.
-54-
ARTICLE XIV
NOTICES
14.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.17 with
respect to borrowing notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2. CHANGE OF ADDRESS. The General Partner, the Borrower, the
Administrative Agent, the Arrangers and any Lender may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto.
ARTICLE XV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
-55-
IN WITNESS WHEREOF, the Borrower, the Guarantor, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------------
Title: Exec VP and CFO
-------------------------------------------
c/o Duke-Weeks Realty Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
DUKE-WEEKS REALTY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------------
Title: Exec VP and CFO
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-56-
COMMITMENTS:
$41,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
By:
----------------------------------------------
Print Name:
--------------------------------------
Title:
-------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Real Estate Portfolio
Management
14th Floor
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$61,000,000 WACHOVIA BANK, N.A., Individually
By:
----------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: Senior Vice President
-------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-57-
$41,000,000 ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Individually and as Co-Syndication Agent
By:
----------------------------------------------
Print Name:
--------------------------------------
Title: Vice President
-------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$31,500,000 PNC BANK, NATIONAL ASSOCIATION,
Individually and as Co-Agent
By:
----------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Assistant Vice President
-------------------------------------------
Real Estate Banking
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: P1-▇▇▇▇-19-2
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-58-
$31,500,000 FIRST UNION NATIONAL BANK,
Individually and as Co-Agent
By:
----------------------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Director
-------------------------------------------
One First ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$23,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, Individually
By:
----------------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
-------------------------------------------
Bank of America National Trust and
Savings Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-59-
$23,000,000 SOUTHTRUST BANK, NATIONAL ASSOCIATION, Individually
By:
----------------------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Group Vice President
-------------------------------------------
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Group Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$23,000,000 SUNTRUST BANK, ATLANTA, Individually
By:
----------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: First Vice President
-------------------------------------------
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
First Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-60-
$15,000,000 FIRST AMERICAN NATIONAL BANK, Individually
By:
----------------------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President
-------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
$10,000,000 NATIONAL CITY BANK OF INDIANA, Individually
By:
----------------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
-------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-61-
EXHIBIT A
PRICING GRID
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
Ratings: At least At least At least At least Below either
S&P, Duff & ▇▇▇▇▇▇ & ▇▇▇▇▇'▇ A- and A3 BBB+ and Baa1 BBB and Baa2 BBB- and Baa3 BBB- or Baa3
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
Corporate Base Rate Margin* 0 0 0 0 40
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
LIBOR Margin* 85 90 105 125 165
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
Facility Fee Rate* 10 15 15 20 25
-------------------------------- ------------------ ----------------- ------------------ ---------------- ------------------
-------------------------
* = in basis points per annum
All margins and fees change effective on the next Business Day following any
rating classification changes.
In the event of a rating agency downgrade, the Borrower, at Borrower's request,
will receive a credit for any incremental borrowing cost should the rating
agency(ies) restore the higher rating within a ninety day period. In the event
that S & P, Duff & ▇▇▇▇▇▇ or ▇▇▇▇▇ or any two of them shall cease to follow the
REIT industry, Borrower or General Partner an alternate agency (or two alternate
agencies if two of the existing rating agencies discontinue such ratings) will
be selected that is mutually acceptable to the Required Lenders and the
Borrower.
In the event of an express conflict or inconsistency between the terms of this
Exhibit A and the Agreement, the terms of the Agreement shall prevail.
EXHIBIT B-1
NOTE
$ July ___, 1999
--------------------------
Duke-Weeks Realty Limited Partnership, an Indiana limited partnership
(the "Borrower") promises to pay to the order of_________________(the "Lender")
the lesser of the principal sum of ______________________ Dollars or the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to ARTICLE II of the Revolving Credit Agreement hereinafter
referred to, in immediately available funds at the main office of The First
National Bank of Chicago in Chicago, Illinois, as Administrative Agent,
together with interest on the unpaid principal amount hereof at the rates and
on the dates set forth in the Agreement. The Borrower shall pay the remaining
unpaid principal of and accrued and unpaid interest on the Loans in full on the
Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Revolving Credit Agreement (as the same may be amended or
modified the "Agreement") dated as of July ___, 1999 among the Borrower,
Duke-Weeks Realty Corporation, as Guarantor and General Partner, The First
National Bank of Chicago, individually and as Administrative Agent, ▇▇▇▇▇ Fargo
Bank, National Association, individually and as Co-Arranger, Banc One Capital
Markets, Inc. as Lead Arranger and Joint Book Runner, Wachovia Securities, Inc.
as Lead Arranger and Joint Book Runner and the other lenders named therein, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Administrative Agent exercises the remedies provided
under the Agreement and/or any of the Loan Documents for the Lenders, then in
addition to all amounts recoverable by the Administrative Agent and the Lenders
under such documents, the Administrative Agent and the Lenders shall be entitled
to receive reasonable attorneys fees and expenses incurred by Administrative
Agent and the Lenders in connection with the exercise of such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note,
and any and all lack of diligence or delays in collection or enforcement of this
Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS PROMISSORY
NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE
AND NOT BEFORE A JURY.
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION, its
General Partner
By:
-------------------------------
Print Name:
-----------------------
Title:
---------------------------
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF DUKE-WEEKS REALTY LIMITED PARTNERSHIP
DATED ____________, 1999
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
DATE PRINCIPAL MATURITY MATURITY UNPAID
AMOUNT OF INTEREST PRINCIPAL BALANCE
OF LOAN PERIOD AMOUNT PAID
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
EXHIBIT B-1
INTENTIONALLY OMITTED
EXHIBIT C-1
INTENTIONALLY OMITTED
EXHIBIT C-2
INTENTIONALLY OMITTED
EXHIBIT C-3
INTENTIONALLY OMITTED
EXHIBIT D
FORM OF OPINION
July ___, 1999
The Administrative Agent and
the Lenders who are parties to the
Credit Agreement described below
Gentlemen/Ladies:
We are counsel for Duke-Weeks Realty Limited Partnership, an Indiana
limited partnership (the "Borrower"), and Duke Realty Corporation, an Indiana
corporation (the "General Partner" and, collectively with the Borrower, the
"Duke Entities"), and have represented the Duke Entities in connection with
their execution and delivery of a Revolving Credit Agreement among the Duke
Entities, The First National Bank of Chicago, individually and as Administrative
Agent, Banc One Capital Markets, Inc. as Lead Arranger and Joint Book Runner,
Wachovia Securities, Inc., as Lead Arranger and Joint Book Runner, ▇▇▇▇▇ Fargo
Bank, National Association individually and as Co-Arranger, and the Lenders
named therein, providing for Advances in an aggregate principal amount of up to
$300,000,000 at any one time outstanding, dated as of July__, 1999 (the
"Agreement"). All capitalized terms used in this opinion and not otherwise
defined shall have the meanings attributed to them in the Agreement.
We have examined the Duke Entities' articles of incorporation, by-laws,
resolutions, certificate of limited partnership, partnership agreement, the Loan
Documents and such other matters of fact and law which we deem necessary in
order to render this opinion. Based upon the foregoing, it is our opinion that:
1. The General Partner, the Borrower and each of their Subsidiaries are
either duly incorporated corporations or duly qualified and formed limited
partnerships, validly existing and in good standing under the laws of their
states of incorporation or formation.
2. The execution and delivery of the Loan Documents by the Duke
Entities and the performance by the Duke Entities of their obligations under the
Loan Documents have been duly authorized by all necessary corporate action
and/or proceedings on the part of the Duke Entities and will not:
(a) require any consent of the Duke Entities' shareholders or
limited partners;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Duke Entities or any of
their Subsidiaries or the Duke Entities' or any Subsidiary's articles
of incorporation, by-laws, certificate of limited partnership,
partnership agreement, or any indenture, instrument or agreement
binding upon the Duke Entities or any of their Subsidiaries; or
(c) result in, or require, the creation or imposition of any Lien
pursuant to the provisions of any indenture, instrument or agreement
binding upon the Duke Entities or any of their Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the Duke
Entities and constitute legal, valid and binding obligations of the Duke
Entities enforceable in accordance with their terms except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
4. There is no litigation or proceeding against the Duke Entities or
any of their Subsidiaries which, if adversely determined, could have a Material
Adverse Effect.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Duke Entities or any
of their Subsidiaries, is required to be obtained by the Duke Entities or any of
their Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under the Agreement or in connection with the payment
by the Duke Entities of their obligations under the Loan Documents.
6. The General Partner qualifies as a real estate investment trust in
accordance with all applicable requirements of the Internal Revenue Code.
This opinion may be relied upon by the Administrative Agent, the
Arrangers, the Lenders and their participants, assignees and other transferees.
Very truly yours,
------------------------------------
EXHIBIT E
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago,
as Agent (the "Agent") under the Agreement
Described Below
Re: Revolving Credit Agreement dated as of July ___, 1999 (as amended,
modified, renewed or extended from time to time, the "Agreement"), among
Duke Realty Limited Partnership, an Indiana limited partnership (the
"Borrower"), Duke-Weeks Realty Corporation, an Indiana corporation, The
First National Bank of Chicago, individually and as Administrative
Agent, Banc One Capital Markets, Inc. as Lead Arranger and Joint Book
Runner, Wachovia Securities, Inc. as Lead Arranger and Joint Book
Runner, ▇▇▇▇▇ Fargo Bank, National Association, individually and as
Co-Arranger, and the Lenders named therein. Terms used herein and not
otherwise defined shall have the meanings assigned thereto in the
Agreement.
The Agent is specifically authorized and directed to act upon the following
standing money transfer instructions with respect to the proceeds of Advances or
other extensions of credit from time to time until receipt by the Agent of a
specific written revocation of such instructions by the Borrower, provided,
however, that the Agent may otherwise transfer funds as hereafter directed in
writing by the Borrower in accordance with SECTION 14.1 of the Credit Agreement
or based on any telephonic notice made in accordance with SECTION 2.17 of the
Agreement.
Facility Identification Number(s)
--------------------------------
Customer/Account Name
--------------------------------------------
Transfer Funds To
------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
For Account No.
--------------------------------------------------
Reference/Attention To
-------------------------------------------
Authorized Officer (Customer Representative) Date
-------------------------
------------------------------------ -----------------------------------------
(Please Print) Signature
Bank Officer Name Date
-------------------------
------------------------------------ -----------------------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT F
COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Credit Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Revolving Credit Agreement dated as of July ___, 1999 (as amended, modified,
renewed or extended from time to time, the "Agreement") among Duke-Weeks Realty
Limited Partnership, an Indiana limited partnership (the "Borrower"), Duke
Realty Corporation, an Indiana corporation ("General Partner"), The First
National Bank of Chicago, individually and as Administrative Agent, Banc One
Capital Markets, Inc. as Lead Arranger and Joint Book Runner, Wachovia
Securities, Inc. as Lead Arranger and Joint Book Runner, ▇▇▇▇▇ Fargo Bank,
National Association, individually and as Co-Arranger, and the Lenders named
therein. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________of the General Partner of
the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this day of ____________, ____.
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION, its
General Partner
By:
----------------------------------------------
Print Name:
--------------------------------------
Title:
-------------------------------------------
[SAMPLE]
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of _____________ with
Provisions ______, ______, and _____ of the Agreement
EXHIBIT G
MINIMUM SPECIFICATIONS FOR ENVIRONMENTAL INVESTIGATIONS
EXHIBIT H
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between _________
______________ (the "Assignor") and (the "Assignee") is dated as of ___________,
____. The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. Such Notice of
Assignment must include the consent of the Agent required by SECTION 13.3.1 of
the Credit Agreement. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective Date under
SECTIONS 4 AND 5 hereof are not made on the proposed Effective Date. The
Assignor will notify the Assignee of the proposed Effective Date no later than
the Business Day prior to the proposed Effective Date. As of the Effective Date,
(i) the Assignee shall have the rights and obligations of a Lender under the
Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all CBR Loans assigned to
the Assignee hereunder and (ii) with respect to each LIBOR Loan made by the
Assignor and assigned to the Assignee hereunder which is outstanding on the
Effective Date, (a) on the last day of the LIBOR Interest Period therefor or
(b) on such earlier date agreed to by the Assignor and the Assignee or (c) on
the date on which any such LIBOR Loan either becomes due (by acceleration or
otherwise) or is prepaid (the date as described in the foregoing clauses (a),
(b) or (c) being hereinafter referred to as the "LIBOR Due Date"), the Assignee
shall pay the Assignor an amount equal to the principal amount of the portion of
such LIBOR Loan assigned to the Assignee which is outstanding on the LIBOR Due
Date. If the Assignor and the Assignee agree that the applicable LIBOR Due Date
for such LIBOR Loan shall be the Effective Date, they shall agree, solely for
purposes of dividing interest paid by the Borrower on such
LIBOR Loan, to an alternate interest rate applicable to the portion of such Loan
assigned hereunder for the period from the Effective Date to the end of the
related LIBOR Interest Period (the "Agreed Interest Rate") and any interest
received by the Assignee in excess of the Agreed Interest Rate, with respect to
such LIBOR Loan for such period, shall be remitted to the Assignor. [In the
event interest for any period from the Effective Date to but not including the
LIBOR Due Date is not paid when due by the Borrower with respect to any LIBOR
Loan sold by the Assignor to the Assignee hereunder, the Assignee shall pay to
the Assignor interest for such period on the portion of such LIBOR Loan sold by
the Assignor to the Assignee hereunder at the applicable rate provided by the
Credit Agreement.] In the event a prepayment of any LIBOR Loan which is existing
on the Effective Date and assigned by the Assignor to the Assignee hereunder
occurs after the Effective Date but before the applicable LIBOR Due Date, the
Assignee shall remit to the Assignor any excess of the funding indemnification
amount paid by the Borrower under Section 3.4 of the Credit Agreement an account
of such prepayment with respect to the portion of such LIBOR Loan assigned to
the Assignee hereunder over the amount which would have been paid if such
prepayment amount were calculated based on the Agreed Interest Rate and only
covered the portion of the LIBOR Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from the Agent with respect to any
LIBOR Loan prior to its LIBOR Due Date and (ii) any amounts of interest on Loans
and fees received from the Agent which relate to the portion of the Loans
assigned to the Assignee hereunder for periods prior to the Effective Date, in
the case of CBR Loans or fees, or the LIBOR Due Date, in the case of LIBOR
Loans, and not previously paid by the Assignee to the Assignor.]* In the event
that either party hereto receives any payment to which the other party hereto is
entitled under this Assignment Agreement, then the party receiving such amount
shall promptly remit it to the other party hereto.
*EACH ASSIGNOR MAY INSERT ITS STANDARD PAYMENT PROVISIONS IN LIEU OF THE PAYMENT
TERMS INCLUDED IN THIS EXHIBIT.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or Facility Fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or Facility Fees attributable to the
period prior to the Effective Date or, in the case of LIBOR Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
SECTION 4 hereof). The amount of such fee shall be the difference between
(i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was calculated at the rate of % rather than the
actual percentage used to calculate the interest rate paid by the Borrower or if
the Facility Fee was calculated at the rate of % rather than the actual
percentage used to calculate the Facility Fee paid by the Borrower, as
applicable. In addition, the Assignee agrees to pay % of the fee required to be
paid to the Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or
sufficiency of any collateral securing or purporting to secure the Loans or
(vii) any mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
[and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying that the Assignee is entitled to receive payments under
the Loan Documents without deduction or withholding of any United States federal
income taxes].
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor harmless
against any and all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's non-performance of
the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall have
the right pursuant to SECTION 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under SECTIONS 4, 5 AND 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the percentage interest specified in Item 3 of Schedule 1 shall
remain the same, but the dollar amount purchased shall be recalculated based on
the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the internal
law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
----------------------------------------------
Title:
-------------------------------------------
-------------------------------------------
-------------------------------------------
[NAME OF ASSIGNEE]
By:
----------------------------------------------
Title:
-------------------------------------------
-------------------------------------------
-------------------------------------------
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Revolving Credit Agreement dated as of July ___, 1999 by and between
the Duke-Weeks Realty Limited Partnership, Duke-Weeks Realty
Corporation, as Guarantor and General Partner, the First National
Bank of Chicago, individually and as Administrative Agent, ▇▇▇▇▇
Fargo Bank, National Association, individually and as Co-Arranger,
Banc One Capital Markets, Inc. as Lead Arranger and Joint Book
Runner, Wachovia Securities, Inc. as Lead Arranger and Joint Book
Runner and the other lenders names therein.
2. Date of Assignment Agreement: ______________, 19__
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $__________________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement* ______%
4. Amount of Assignee's (Loan Amount)**
Commitment Purchased under this
Assignment Agreement: $__________________
5. Proposed Effective Date: ___________________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------------- --------------------------------
Title: Title:
----------------------------- --------------------------------
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
EXHIBIT I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
_______________, ___
To: [NAME OF ADMINISTRATIVE AGENT]
------------------------------
------------------------------
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
This Notice of Assignment (this "Notice") is given and delivered to the
Administrative Agent pursuant to SECTION 13.3.2 of the Credit Agreement.
The Assignor and the Assignee have entered into an Assignment Agreement, dated
as of _________, ___ (the "Assignment"), pursuant to which, among other things,
the Assignor has sold, assigned, delegated and transferred to the Assignee, and
the Assignee has purchased, accepted and assumed from the Assignor the
percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement. The Effective Date of the
Assignment shall be the later of the date specified in Item 5 of Schedule 1 or
two (2) Business Days (or such shorter period as agreed to by the Administrative
Agent) after this Notice of Assignment and any fee required by SECTION 13.3.2 of
the Credit Agreement have been delivered to the Administrative Agent, provided
that the Effective Date shall not occur if any condition precedent agreed to by
the Assignor and the Assignee has not been satisfied.
The Assignor and the Assignee hereby give to the Administrative Agent notice of
the assignment and delegation referred to herein. The Assignor will confer with
the Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to SECTION 3 hereof, and will confer with the Administrative Agent to
determine the Effective Date pursuant to SECTION 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the Assignment
Agreement does not become effective on any proposed Effective Date as a result
of the failure to satisfy the conditions precedent agreed to by the Assignor and
the Assignee. At the request of the Administrative Agent, the Assignor will give
the Administrative Agent written confirmation of the satisfaction of the
conditions precedent.
The Assignor or the Assignee shall pay to the Administrative Agent on or before
the Effective Date the processing fee of $3,000 required by SECTION 13.3.2 of
the Credit Agreement.
If Notes are outstanding on the Effective Date, the Assignor and the Assignee
request and direct that the Administrative Agent prepare and cause the Borrower
to execute and deliver new Notes or, as appropriate, replacements notes, to the
Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Administrative Agent the original Note
received by it from the Borrower upon its receipt of a new Note in the
appropriate amount.
The Assignee advises the Administrative Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
The Assignee hereby represents and warrants that none of the funds, monies,
assets or other consideration being used to make the purchase pursuant to the
Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
The Assignee authorizes the Administrative Agent to act as its agent under the
Loan Documents in accordance with the terms thereof. The Assignee acknowledges
that the Administrative Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
* May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
-------------------------------- --------------------------------
Title: Title:
----------------------------- --------------------------------
ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent
By:
--------------------------------
Title:
-----------------------------
[Attach photocopy of Schedule 1 to Assignment]
EXHIBIT I
INTENTIONALLY OMITTED
EXHIBIT J
INTENTIONALLY OMITTED
EXHIBIT K
FORM OF SUBSIDIARY GUARANTY
This Guaranty is made as of ________________, _____ by _________________,
a ________________ ("GUARANTOR"), to and for the benefit of The First National
Bank of Chicago, individually ("FIRST CHICAGO") and as administrative agent
("ADMINISTRATIVE AGENT") for itself and the lenders under the Credit Agreement
(as defined below) and their respective successors and assigns (collectively,
the "LENDERS").
RECITALS
▇. ▇▇▇▇-Weeks Realty Limited Partnership, an Indiana limited
partnership ("BORROWER"), Duke-Weeks Realty Corporation, an Indiana corporation
(the "General Partner"), Banc One Capital Markets, Inc. ("BOCM") and Wachovia
Securities, Inc. ("Wachovia") (collectively, the "Lead Arrangers" and "Joint
Book Runners"), ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇ Fargo") (the
"Co-Arranger"), First Chicago, individually, and as Administrative Agent, and
the Lenders have entered into a Revolving Credit Agreement dated as of July __,
1999 (as amended, modified or restated from time to time, the "CREDIT
AGREEMENT") pursuant to which the Lenders have agreed to provide Borrower with a
revolving credit facility in an aggregate principal amount of up to $300,000,000
(the "Facility"). All capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Credit Agreement.
B. Borrower has executed and delivered or will execute and deliver to
the Lenders promissory notes in the principal amount of each Lender's Commitment
as evidence of Borrower's indebtedness to each such Lender with respect to the
Facility (the promissory notes described above, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Credit Agreement, are collectively
referred to herein as the "NOTES").
C. Guarantor is a Subsidiary of Borrower. Guarantor acknowledges that
the extension of credit by the Administrative Agent and the Lenders to Borrower
pursuant to the Credit Agreement will benefit Guarantor by making funds
available to Guarantor through Borrower and by enhancing the financial strength
of the consolidated group of which Guarantor and Borrower are members.
D. SECTION 7.28 of the Credit Agreement permits Borrower to cause any
of its Subsidiaries to execute and deliver a Subsidiary Guaranty to the
Administrative Agent. After such execution and delivery, such Subsidiary's
Projects will no longer be excluded from the definition of "Unencumbered Assets"
solely because such Projects are directly owned by a Subsidiary. The execution
and delivery of this Guaranty by Guarantor is made pursuant to such
SECTION 7.28.
AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
each of the Lenders:
(a) the full and prompt payment of the principal of and interest on
the Notes when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all sums
which may now be or may hereafter become due and owing under the Notes, the
Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined in
PARAGRAPH 7 hereof); and
(c) the full, complete, and punctual observance, performance, and
satisfaction of all of the obligations, duties, covenants, and agreements
of Borrower under the Credit Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this PARAGRAPH 1 are referred to herein as the
"FACILITY INDEBTEDNESS." All obligations described in subparagraph (c) of this
PARAGRAPH 1 are referred to herein as the "OBLIGATIONS." Guarantor and Lenders
agree that Guarantor's obligations hereunder shall not exceed the greater of:
(i) the aggregate amount of all monies received, directly or indirectly, by
Guarantor from Borrower after the date hereof (whether by loan, capital infusion
or other means), or (ii) the maximum amount of the Facility Indebtedness not
subject to avoidance under Title 11 of the United States Code, as same may be
amended from time to time, or any applicable state law (the "Bankruptcy Code").
To that end, to the extent such obligations would otherwise be subject to
avoidance under the Bankruptcy Code if Guarantor is not deemed to have received
valuable consideration, fair value or reasonably equivalent value for its
obligations hereunder, Guarantor's obligations hereunder shall be reduced to
that amount which, after giving effect thereto, would not render Guarantor
insolvent, or leave Guarantor with an unreasonably small capital to conduct its
business, or cause Guarantor to have incurred debts (or intended to have
incurred debts) beyond its ability to pay such debts as they mature, as such
terms are determined, and at the time such obligations are deemed to have been
incurred, under the Bankruptcy Code. In the event Guarantor shall make any
payment or payments under this Guaranty each other guarantor of the Facility
Indebtedness shall contribute to Guarantor an amount equal to such non-paying
guarantor's pro rata share (based on their respective maximum liabilities
hereunder and under such other guaranty) of such payment or payments made by
Guarantor, provided that such contribution right shall be subordinate and junior
in right of payment in full of all the Facility Indebtedness to Lenders.
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by the Administrative Agent or the holder of a Note, to pay
all the Facility Indebtedness and to perform all the Obligations as are then or
thereafter
become due and owing or are to be performed under the terms of the Notes, the
Credit Agreement, and the other Loan Documents.
3. Guarantor does hereby waive (i) notice of acceptance of this
Guaranty by the Administrative Agent and the Lenders and any and all notices and
demands of every kind which may be required to be given by any statute, rule or
law, (ii) any defense, right of set-off or other claim which Guarantor may have
against Borrower or which Guarantor or Borrower may have against the
Administrative Agent or the Lenders or the holder of a Note, (iii) presentment
for payment, demand for payment (other than as provided for in PARAGRAPH 2
above), notice of nonpayment (other than as provided for in PARAGRAPH 2 above)
or dishonor, protest and notice of protest, diligence in collection and any and
all formalities which otherwise might be legally required to charge Guarantor
with liability, (iv) any failure by the Administrative Agent and the Lenders to
inform Guarantor of any facts the Administrative Agent and the Lenders may now
or hereafter know about Borrower, the Facility, or the transactions contemplated
by the Credit Agreement, it being understood and agreed that the Administrative
Agent and the Lenders have no duty so to inform and that Guarantor is fully
responsible for being and remaining informed by Borrower of all circumstances
bearing on the existence or creation, or the risk of nonpayment of the Facility
Indebtedness or the risk of nonperformance of the Obligations, and (v) any and
all right to cause a marshalling of assets of Borrower or any other action by
any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Guarantor, regardless of the financial
or other condition of Borrower at the time of any such grant or continuation.
The Administrative Agent and the Lenders shall have no obligation to disclose or
discuss with Guarantor their assessment of the financial condition of Borrower.
Guarantor acknowledges that no representations of any kind whatsoever have been
made by the Administrative Agent and the Lenders to Guarantor. No modification
or waiver of any of the provisions of this Guaranty shall be binding upon the
Administrative Agent and the Lenders except as expressly set forth in a writing
duly signed and delivered on behalf of the Administrative Agent and the Lenders.
Guarantor further agrees that any exculpatory language contained in the Credit
Agreement, the Notes, and the other Loan Documents shall in no event apply to
this Guaranty, and will not prevent the Administrative Agent and the Lenders
from proceeding against Guarantor to enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor
shall in no way be impaired by any renewals or extensions which may be made from
time to time, with or without the knowledge or consent of Guarantor of the time
for payment of interest or principal under a Note or by any forbearance or delay
in collecting interest or principal under a Note, or by any waiver by the
Administrative Agent and the Lenders under the Credit Agreement, or any other
Loan Documents, or by the Administrative Agent or the Lenders' failure or
election not to pursue any other remedies they may have against Borrower, or by
any change or modification in a Note, the Credit Agreement, or any other Loan
Documents, or by the acceptance by the Administrative Agent or the Lenders of
any security or any increase, substitution or change therein, or by the release
by the Administrative Agent and the Lenders of any security or any withdrawal
thereof or decrease therein, or by the application of payments received from any
source to the payment of any obligation other than the Facility Indebtedness,
even though a Lender might lawfully have
elected to apply such payments to any part or all of the Facility Indebtedness,
it being the intent hereof that Guarantor shall remain liable as principal for
payment of the Facility Indebtedness and performance of the Obligations until
all indebtedness has been paid in full and the other terms, covenants and
conditions of the Credit Agreement, and other Loan Documents and this Guaranty
have been performed, notwithstanding any act or thing which might otherwise
operate as a legal or equitable discharge of a surety. Guarantor further
understands and agrees that the Administrative Agent and the Lenders may at any
time enter into agreements with Borrower to amend and modify a Note, the Credit
Agreement or any of the other Loan Documents, or any thereof, and may waive or
release any provision or provisions of a Note, the Credit Agreement, or any
other Loan Document and, with reference to such instruments, may make and enter
into any such agreement or agreements as the Administrative Agent, the Lenders
and Borrower may deem proper and desirable, without in any manner impairing this
Guaranty or any of the Administrative Agent and the Lenders' rights hereunder or
any of Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantor agrees that
its obligations hereunder shall be joint and several with any and all other
guarantees given in connection with the Facility from time to time. Guarantor
agrees that this Guaranty may be enforced by the Administrative Agent and the
Lenders without the necessity at any time of resorting to or exhausting any
security or collateral, if any, given in connection herewith or with a Note, the
Credit Agreement, or any of the other Loan Documents or by or resorting to any
other guaranties, and Guarantor hereby waives the right to require the
Administrative Agent and the Lenders to join Borrower in any action brought
hereunder or to commence any action against or obtain any judgment against
Borrower or to pursue any other remedy or enforce any other right. Guarantor
further agrees that nothing contained herein or otherwise shall prevent the
Administrative Agent and the Lenders from pursuing concurrently or successively
all rights and remedies available to them at law and/or in equity or under a
Note, the Credit Agreement or any other Loan Documents, and the exercise of any
of their rights or the completion of any of their remedies shall not constitute
a discharge of any of Guarantor's obligations hereunder, it being the purpose
and intent of Guarantor that the obligations of such Guarantor hereunder shall
be primary, absolute, independent and unconditional under any and all
circumstances whatsoever. Neither Guarantor's obligations under this Guaranty
nor any remedy for the enforcement thereof shall be impaired, modified, changed
or released in any manner whatsoever by any impairment, modification, change,
release or limitation of the liability of Borrower under a Note, the Credit
Agreement or any other Loan Document or by reason of Borrower's bankruptcy or by
reason of any creditor or bankruptcy proceeding instituted by or against
Borrower. This Guaranty shall continue to be effective and be deemed to have
continued in existence or be reinstated (as the case may be) if at any time
payment of all or any part of any sum payable pursuant to a Note, the Credit
Agreement or any other Loan Document is rescinded or otherwise required to be
returned by the payee upon the insolvency, bankruptcy, or reorganization of the
payor, all as though such payment to such Lender had not been made, regardless
of whether such Lender contested the order requiring the return of such payment.
The obligations of Guarantor pursuant to the preceding sentence shall survive
any termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee of all
or a portion of such Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, a Note, or any of the Loan Documents are
placed in the hands of an attorney for collection or is collected through any
legal proceeding; (ii) an attorney is retained to represent the Administrative
Agent or any Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, a Note, the Credit Agreement, or any Loan Document; (iii) an attorney
is retained to enforce any of the other Loan Documents or to provide advice or
other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent the Administrative Agent or any Lender in any other legal
proceedings whatsoever in connection with this Guaranty, a Note, the Credit
Agreement, any of the Loan Documents, or any property subject thereto (other
than any action or proceeding brought by any Lender or participant against the
Administrative Agent alleging a breach by the Administrative Agent of its duties
under the Loan Documents), then Guarantor shall pay to the Administrative Agent
or such Lender upon demand all reasonable attorney's fees, costs and expenses,
including, without limitation, court costs, filing fees and all other costs and
expenses incurred in connection therewith (all of which are referred to herein
as "ENFORCEMENT COSTS"), in addition to all other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing
is hereby subordinated to the Facility Indebtedness. Guarantor will not seek,
accept, or retain for Guarantor's own account, any payment from Borrower on
account of such subordinated debt at any time when a Default or Event of Default
exists under the Credit Agreement or the Loan Documents, and any such payments
to Guarantor made while any Default or Event of Default then exists under the
Credit Agreement or the Loan Documents on account of such subordinated debt
shall be collected and received by Guarantor in trust for the Lenders and shall
be paid over to the Administrative Agent on behalf of the Lenders on account of
the Facility Indebtedness without impairing or releasing the obligations of
Guarantor hereunder.
10. Guarantor hereby subordinates to the Facility Indebtedness any and
all claims and rights, including, without limitation, subrogation rights,
contribution rights, reimbursement rights and set-off rights, which Guarantor
may have against Borrower arising from a payment made by
Guarantor under this Guaranty and agrees that, until the entire Facility
Indebtedness is paid in full, not to assert or take advantage of any subrogation
rights of Guarantor or the Lenders or any right of Guarantor or the Lenders to
proceed against (i) Borrower for reimbursement, or (ii) any other guarantor or
any collateral security or guaranty or right of offset held by the Lenders for
the payment of the Facility Indebtedness and performance of the Obligations, nor
shall Guarantor seek or be entitled to seek any contribution or reimbursement
from Borrower or any other guarantor in respect of payments made by Guarantor
hereunder. It is expressly understood that the agreements of Guarantor set forth
above constitute additional and cumulative benefits given to the Lenders for
their security and as an inducement for their extension of credit to Borrower.
11. Any amounts received by a Lender from any source on account of any
indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Guarantor hereby submits to personal jurisdiction in the State of
Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents to the jurisdiction of either the
Circuit Court of ▇▇▇▇ County, Illinois, or the United States District Court for
the Northern District of Illinois, in any action, suit, or proceeding which the
Administrative Agent or a Lender may at any time wish to file in connection with
this Guaranty or any related matter. Guarantor hereby agrees that an action,
suit, or proceeding to enforce this Guaranty may be brought in any state or
federal court in the State of Illinois and hereby waives any objection which
Guarantor may have to the laying of the venue of any such action, suit, or
proceeding in any such court; provided, however, that the provisions of this
Paragraph shall not be deemed to preclude the Administrative Agent or a Lender
from filing any such action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Guarantor:
c/o Duke-Weeks Realty Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bose ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To First Chicago as Administrative Agent and as a Lender:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Real Estate Portfolio Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any other Lender, to its address set forth in the Credit Agreement.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of the Administrative Agent and the Lenders' successors and assigns.
15. This Guaranty shall be construed and enforced under the internal
laws of the State of Illinois.
16. GUARANTOR, THE ADMINISTRATIVE AGENT AND THE LENDERS, BY THEIR
ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH
IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
___________________________________, a __________
By:
----------------------------------------------
Its:
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SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See SECTION 6.7)
-------------------------- ----------------------- ------------------------ ----------------------- -----------------------
INVESTMENT OWNED AMOUNT OF PERCENT JURISDICTION OF
IN BY INVESTMENT OWNERSHIP ORGANIZATION
-------------------------- ----------------------- ------------------------ ----------------------- -----------------------
-------------------------- ----------------------- ------------------------ ----------------------- -----------------------
SCHEDULE 2
INDEBTEDNESS AND LIENS
(See SECTION 7.15)
-------------------------- ----------------------- ------------------------ -----------------------
MATURITY
INDEBTEDNESS INDEBTEDNESS PROPERTY AND AMOUNT
INCURRED BY OWED TO ENCUMBERED OF INDEBTEDNESS
-------------------------- ----------------------- ------------------------ -----------------------
-------------------------- ----------------------- ------------------------ -----------------------
SCHEDULE 3
UNENCUMBERED ASSETS
(See SECTION 6.20)
PROJECT NAME DATE PLACED
AND ADDRESS TYPE OF PROJECT IN SERVICE OWNED BY
---------------------- ----------------------- ------------------------ -----------------------