EXHIBIT 10.2
THIRD AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF JUNE 11, 2004
AMONG
FIRST INDUSTRIAL, L.P., AS BORROWER
FIRST INDUSTRIAL REALTY TRUST, INC.,
AS GENERAL PARTNER AND GUARANTOR
THE LENDERS
AND
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
AS SYNDICATION AGENT
AND
COMMERZBANK, AG,
PNC BANK, NATIONAL ASSOCIATION
AND
▇▇▇▇▇ FARGO BANK, N.A.
AS DOCUMENTATION AGENTS
TABLE OF CONTENTS
Article I. DEFINITIONS AND ACCOUNTING TERMS............................................................... 2
1.1. Definitions................................................................................... 2
1.2. Financial Standards........................................................................... 18
Article II. THE FACILITY.................................................................................. 19
2.1. The Facility.................................................................................. 19
2.2. Principal Payments and Extension Option....................................................... 19
2.3. Requests for Advances; Responsibility for Advances............................................ 20
2.4. Evidence of Credit Extensions................................................................. 20
2.5. Ratable and Non-Pro Rata Loans................................................................ 20
2.6. Applicable Margins............................................................................ 20
2.7. Other Fees.................................................................................... 21
2.8. Minimum Amount of Each Advance................................................................ 21
2.9. Interest...................................................................................... 21
2.10. Selection of Rate Options and LIBOR Interest Periods....................................... 22
2.11. Method of Payment.......................................................................... 24
2.12. Default.................................................................................... 24
2.13. Lending Installations...................................................................... 25
2.14. Non-Receipt of Funds by Administrative Agent............................................... 25
2.15. Swingline Loans............................................................................ 25
2.16. Competitive Bid Loans...................................................................... 26
2.17. Voluntary Reduction of Aggregate Commitment Amount......................................... 30
2.18. Increase in Aggregate Commitment........................................................... 30
2.19. Application of Moneys Received............................................................. 31
Article III. THE LETTER OF CREDIT SUBFACILITY............................................................. 32
3.1. Obligation to Issue........................................................................... 32
3.2. Types and Amounts............................................................................. 32
3.3. Conditions.................................................................................... 32
3.4. Procedure for Issuance of Facility Letters of Credit.......................................... 33
3.5. Reimbursement Obligations; Duties of Issuing Bank............................................. 34
3.6. Participation................................................................................. 34
3.7. Payment of Reimbursement Obligations.......................................................... 36
3.8. Compensation for Facility Letters of Credit................................................... 37
3.9. Letter of Credit Collateral Account........................................................... 37
Article IV. CHANGE IN CIRCUMSTANCES....................................................................... 38
4.1. Yield Protection.............................................................................. 38
4.2. Changes in Capital Adequacy Regulations....................................................... 38
4.3. Availability of LIBOR Advances................................................................ 39
4.4. Funding Indemnification....................................................................... 39
4.5. Taxes......................................................................................... 39
4.6. Lender Statements; Survival of Indemnity...................................................... 42
4.7. Replacement of Lenders under Certain Circumstances............................................ 42
Article V. CONDITIONS PRECEDENT........................................................................... 43
5.1. Conditions Precedent to Closing............................................................... 43
5.2. Conditions Precedent to Subsequent Advances................................................... 45
Article VI. REPRESENTATIONS AND WARRANTIES................................................................ 46
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6.1. Existence..................................................................................... 46
6.2. Corporate/Partnership Powers.................................................................. 46
6.3. Power of Officers............................................................................. 46
6.4. Government and Other Approvals................................................................ 47
6.5. Solvency...................................................................................... 47
6.6. Compliance With Laws.......................................................................... 47
6.7. Enforceability of Agreement................................................................... 47
6.8. Title to Property............................................................................. 47
6.9. Litigation.................................................................................... 48
6.10. Events of Default.......................................................................... 48
6.11. Investment Company Act of 1940............................................................. 48
6.12. Public Utility Holding Company Act......................................................... 48
6.13. Regulation U............................................................................... 48
6.14. No Material Adverse Financial Change....................................................... 48
6.15. Financial Information...................................................................... 48
6.16. Factual Information........................................................................ 48
6.17. ERISA...................................................................................... 49
6.18. Taxes...................................................................................... 49
6.19. Environmental Matters...................................................................... 49
6.20. Insurance.................................................................................. 50
6.21. No Brokers................................................................................. 50
6.22. No Violation of Usury Laws................................................................. 50
6.23. Not a Foreign Person....................................................................... 50
6.24. No Trade Name.............................................................................. 50
6.25. Subsidiaries............................................................................... 51
6.26. Unencumbered Assets........................................................................ 51
Article VII. ADDITIONAL REPRESENTATIONS AND WARRANTIES.................................................... 52
7.1. Existence..................................................................................... 53
7.2. Corporate Powers.............................................................................. 53
7.3. Power of Officers............................................................................. 53
7.4. Government and Other Approvals................................................................ 53
7.5. Compliance With Laws.......................................................................... 53
7.6. Enforceability of Agreement................................................................... 53
7.7. Liens; Consents............................................................................... 53
7.8. Litigation.................................................................................... 53
7.9. Events of Default............................................................................. 54
7.10. Investment Company Act of 1940............................................................. 54
7.11. Public Utility Holding Company Act......................................................... 54
7.12. No Material Adverse Financial Change....................................................... 54
7.13. Financial Information...................................................................... 54
7.14. Factual Information........................................................................ 54
7.15. ERISA...................................................................................... 54
7.16. Taxes...................................................................................... 54
7.17. No Brokers................................................................................. 55
7.18. Subsidiaries............................................................................... 55
7.19. Status..................................................................................... 55
Article VIII. AFFIRMATIVE COVENANTS....................................................................... 55
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8.1. Notices....................................................................................... 55
8.2. Financial Statements, Reports, Etc............................................................ 56
8.3. Existence and Conduct of Operations........................................................... 58
8.4. Maintenance of Properties..................................................................... 59
8.5. Insurance..................................................................................... 59
8.6. Payment of Obligations........................................................................ 59
8.7. Compliance with Laws.......................................................................... 59
8.8. Adequate Books................................................................................ 59
8.9. ERISA......................................................................................... 59
8.10. Maintenance of Status...................................................................... 59
8.11. Use of Proceeds............................................................................ 59
8.12. Pre-Acquisition Environmental Investigations............................................... 59
8.13. Distributions.............................................................................. 60
Article IX. NEGATIVE COVENANTS............................................................................ 60
9.1. Change in Business............................................................................ 60
9.2. Change of Management of Properties............................................................ 60
9.3. Change of Borrower Ownership.................................................................. 60
9.4. Use of Proceeds............................................................................... 60
9.5. Transfers of Unencumbered Assets.............................................................. 60
9.6. Liens......................................................................................... 61
9.7. Regulation U.................................................................................. 61
9.8. Indebtedness and Cash Flow Covenants.......................................................... 61
9.9. Mergers and Dispositions...................................................................... 62
9.10. Negative Pledge............................................................................ 63
9.11. Maximum Revenue from Single Tenant......................................................... 63
9.12. Issuance of Senior Preferred Stock......................................................... 63
Article X. DEFAULTS....................................................................................... 63
10.1. Nonpayment of Principal.................................................................... 63
10.2. Certain Covenants.......................................................................... 63
10.3. Nonpayment of Interest and Other Obligations............................................... 63
10.4. Cross Default.............................................................................. 63
10.5. Loan Documents............................................................................. 63
10.6. Representation or Warranty................................................................. 64
10.7. Covenants, Agreements and Other Conditions................................................. 64
10.8. No Longer General Partner.................................................................. 64
10.9. Material Adverse Financial Change.......................................................... 64
10.10. Bankruptcy................................................................................. 64
10.11. Legal Proceedings.......................................................................... 65
10.12. ERISA...................................................................................... 65
10.13. [Intentionally Omitted.]................................................................... 65
10.14. Failure to Satisfy Judgments............................................................... 65
10.15. Environmental Remediation.................................................................. 65
Article XI. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................................ 65
11.1. Acceleration............................................................................... 65
11.2. Preservation of Rights; Amendments......................................................... 66
Article XII. THE ADMINISTRATIVE AGENT..................................................................... 66
12.1. Appointment................................................................................ 66
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12.2. Powers..................................................................................... 67
12.3. General Immunity........................................................................... 67
12.4. No Responsibility for Loans, Recitals, etc................................................. 67
12.5. Action on Instructions of Lenders.......................................................... 67
12.6. Employment of Administrative Agents and Counsel............................................ 67
12.7. Reliance on Documents; Counsel............................................................. 68
12.8. Administrative Agent's Reimbursement and Indemnification................................... 68
12.9. Rights as a Lender......................................................................... 68
12.10. [Intentionally Omitted.]................................................................... 68
12.11. Lender Credit Decision..................................................................... 68
12.12. Successor Administrative Agent............................................................. 69
12.13. Notice of Defaults......................................................................... 69
12.14. Requests for Approval...................................................................... 69
12.15. Copies of Documents........................................................................ 70
12.16. Defaulting Lenders......................................................................... 70
12.17. Delegation to Affiliates................................................................... 70
12.18. Co-Agents, Managing Agents, Documentation Agent, Syndication Agent, etc.................... 71
Article XIII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS........................................... 71
13.1. Successors and Assigns..................................................................... 71
13.2. Participations............................................................................. 71
13.3. Assignments................................................................................ 72
13.4. Dissemination of Information............................................................... 74
13.5. Tax Treatment.............................................................................. 74
Article XIV. GENERAL PROVISIONS........................................................................... 74
14.1. Survival of Representations................................................................ 74
14.2. Governmental Regulation.................................................................... 74
14.3. Taxes...................................................................................... 74
14.4. Headings................................................................................... 74
14.5. No Third Party Beneficiaries............................................................... 74
14.6. Expenses; Indemnification.................................................................. 75
14.7. Severability of Provisions................................................................. 75
14.8. Nonliability of the Lenders................................................................ 75
14.9. Choice of Law.............................................................................. 75
14.10. Consent to Jurisdiction.................................................................... 75
14.11. Waiver of Jury Trial....................................................................... 76
14.12. Successors and Assigns..................................................................... 76
14.13. Entire Agreement; Modification of Agreement................................................ 76
14.14. Dealings with the Borrower................................................................. 77
14.15. Set-Off.................................................................................... 77
14.16. Counterparts............................................................................... 77
Article XV. NOTICES....................................................................................... 78
15.1. Giving Notice.............................................................................. 78
15.2. Change of Address.......................................................................... 79
EXHIBITS
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A - Percentages
B-1 - Form of Note
B-2 - Form of Competitive Bid Note
C-1 - Form of Competitive Bid Quote Request
C-2 - Invitation for Competitive Bid Quotes
C-3 - Competitive Bid Quote
D - Form of Guaranty
E - Opinion of Borrower's Counsel
F - Opinion of General Partner's Counsel
G - Wiring Instructions
H - Form of Compliance Certificate
I - Intentionally Deleted
J - Form of Assignment Agreement
K - Form of Designation Agreement
L - Form of Amendment
SCHEDULES
6.9 Litigation (Borrower)
6.19 Environmental Compliance
6.24 Trade Names
6.25 Subsidiaries (Borrower)
6.26 Unencumbered Assets
7.8 Litigation (General Partner)
7.18 Subsidiaries (General Partner)
v
THIRD AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AGREEMENT is
entered into as of June 11, 2004 by and among the following:
FIRST INDUSTRIAL, L.P., a Delaware limited partnership having its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower"), the sole general partner of which is First
Industrial Realty Trust, Inc., a Maryland corporation;
FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is
qualified as a real estate investment trust whose principal place of business is
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("General Partner");
BANK ONE, NA ("Bank One"), a national bank organized under the laws of the
United States of America having an office at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ as Administrative Agent ("Administrative Agent") for the Lenders (as
defined below);
WACHOVIA BANK, NATIONAL ASSOCIATION as Syndication Agent ("Syndication
Agent");
COMMERZBANK, AG, PNC BANK, NATIONAL ASSOCIATION and ▇▇▇▇▇ FARGO BANK, N.A.
as Documentation Agents ("Documentation Agents"); and
Those Lenders identified on the signature pages hereto.
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, owning and operating bulk warehouse and light industrial properties.
B. Borrower, the General Partner, the Administrative Agent and certain
of the Lenders are parties to the "Existing Credit Agreement" (as defined
below).
C. The Borrower has requested that the Existing Credit Agreement (the
"Facility") be amended and restated, to extend the maturity date of the Facility
and to amend certain other provisions of the Existing Credit Agreement further
as hereinafter set forth. The Administrative Agent and the Lenders have agreed
to do so.
D. General Partner is fully liable for the obligations of Borrower
hereunder by virtue of its status as the sole general partner of Borrower and as
guarantor under the Guaranty.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
Article I.
DEFINITIONS AND ACCOUNTING TERMS
1.1. Definitions. As used in this Agreement, the following terms have the
meanings set forth below:
"Absolute Interest Period" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of up to 180 days as requested by Borrower in
a Competitive Bid Quote Request and confirmed by a Lender in a Competitive Bid
Quote but in no event extending beyond the Maturity Date. If an Absolute
Interest Period would end on a day which is not a Business Day, such Absolute
Interest Period shall end on the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate under Section
2.16.
"Adjusted EBITDA" means for any Person the sum of EBITDA for such Person
and such Person's reported corporate overhead for itself and its Subsidiaries;
provided that "Adjusted EBITDA" shall not include overhead related to specific
properties.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the Base
LIBOR 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) in the case of ratable LIBOR Advances, the LIBOR
Applicable Margin in effect from time to time during such LIBOR Interest Period,
or in the case of LIBOR Advances made as Competitive Bid Loans, the Competitive
LIBOR Margin established in the Competitive Bid Quote applicable to such
Competitive Bid Loan.
"Adjusted Prime Rate" means a floating interest rate equal to the Prime
Rate plus Prime Applicable Margin changing when and as the Prime Rate and Prime
Applicable Margin changes.
"Adjusted Prime Rate Advance" means an Advance that bears interest at the
Adjusted Prime Rate.
"Administrative Agent" means Bank One, in its capacity as contractual
representative of the Lenders pursuant to Article XII, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article XII.
"Advance" means a borrowing hereunder, (i) disbursed by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same type and, in the case of LIBOR Loans,
for the same Interest Period. The term "Advance" shall include Swingline Loans
and Competitive Bid Loans unless otherwise expressly provided.
"Affiliate" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any other Person.
A Person shall be deemed to control
2
another Person if the controlling Person owns ten percent (10%) or more of any
class of voting securities 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, as of any date, the sum of all of the
Lenders' then-current Commitments, which initially shall be $300,000,000,
subject to Borrower's right to reduce the Aggregate Commitment pursuant to
Section 2.17 and to increase the Aggregate Commitment pursuant to Section 2.18.
"Agreement" means this Third Amended and Restated Unsecured Revolving
Credit Agreement and all amendments, modifications and supplements hereto.
"Agreement Execution Date" shall mean ____, 2004, the date on which all of
the parties hereto have executed this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans and Competitive Bid Loans),
and the then outstanding Facility Letter of Credit Obligations.
"Applicable Cap Rate" means 8.5%.
"Applicable Margin" means the applicable margins set forth in the table in
Section 2.6 used in calculating the interest rate applicable to the various
types of Advances, which shall vary from time to time in accordance with the
long term, senior unsecured debt ratings of Borrower and General Partner in the
manner set forth in Section 2.6.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc.
"Bank One" means Bank One, NA.
"Base LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
Interest Period, the applicable British Bankers' Association LIBOR rate for
deposits in U.S. dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Base LIBOR Rate for the relevant
Interest Period shall instead be the rate determined by the Agent to be the rate
at which Bank One or one of its Affiliate banks offers to place deposits in U.S.
dollars with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant LIBOR Advance
and having a maturity equal to such Interest Period.
"Borrower" means First Industrial, L.P., along with its permitted
successors and assigns.
3
"Borrowing Date" means a Business Day on which an Advance is made to the
Borrower.
"Borrowing Notice" is defined in Section 2.10(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or holiday, on
which banks are open for business in Chicago, Illinois and, where such term is
used in reference to the selection or determination of the Adjusted LIBOR Rate,
in London, England.
"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.
"Cash Equivalents" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by Standard and Poor's Corporation or P-1 or better by ▇▇▇▇▇'▇ Investors
Service, Inc., or (iii) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000; provided in each case that the same provides for payment
of both principal and interest (and not principal alone or interest alone) and
is not subject to any contingency regarding the payment of principal or
interest.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"Collateral Letter of Credit" means any irrevocable unconditional Letter
of Credit issued in the name of the Administrative Agent for the benefit of the
Lenders in form and substance satisfactory to the Administrative Agent and drawn
on a bank having a rating of at least AA by S&P and otherwise satisfactory to
the Administrative Agent.
"Commitment" means the obligation of each Lender, subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties herein, to make Advances not exceeding in the aggregate the amount
set forth in Exhibit A, or the amount stated in any subsequent amendment hereto.
"Competitive Bid Borrowing Notice" is defined in Section 2.16(f).
"Competitive Bid Lender" means a Lender which has a Competitive Bid Loan
outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.16 hereof.
"Competitive Bid Note" means the promissory note payable to the order of
each Lender in the form attached hereto as Exhibit B-2 to be used to evidence
any Competitive Bid Loans which such Lender elects to make (collectively, the
"Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent with respect to a Competitive Bid Quote Request in the form
attached as Exhibit C-3.
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"Competitive Bid Quote Request" means a written request from Borrower to
Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid Loan
for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Consolidated Operating Partnership" means the Borrower, the General
Partner and any other subsidiary partnerships or entities of either of them
which are required under GAAP to be consolidated with the Borrower and the
General Partner for financial reporting purposes.
"Consolidated Secured Debt" means as of any date of determination, the sum
of (a) the aggregate principal amount of all Indebtedness of the Consolidated
Operating Partnership outstanding at such date which is secured by a Lien on any
asset or Capital Stock of Consolidated Operating Partnership, including without
limitation loans secured by mortgages, stock, or partnership interests, but
excluding Defeased Debt and (b) the amount by which the aggregate principal
amount of all Indebtedness of the Subsidiaries of the Borrower or General
Partner outstanding at such date exceeds $5,000,000, without duplication of any
Indebtedness included under clause (a).
"Consolidated Senior Unsecured Debt" means as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership outstanding at such date other than (a)
Indebtedness which is contractually subordinated to the Indebtedness of the
Consolidated Operating Partnership under the Loan Documents on terms acceptable
to the Administrative Agent and (b) that portion of Consolidated Secured Debt
described in clause (a) of that definition.
"Consolidated Total Indebtedness" means as of any date of determination,
all Indebtedness of the Consolidated Operating Partnership outstanding at such
date, determined on a consolidated basis in accordance with GAAP, after
eliminating intercompany items; provided that for purposes of defining
"Consolidated Total Indebtedness" the term "Indebtedness" shall not include the
short term debt (e.g. accounts payable, short term expenses) of Borrower or
General Partner or Defeased Debt.
"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 all or any of the entities in the Consolidated Operating
Partnership, are treated as a single employer under Sections 414(b) or 414(c) of
the Code.
"Debt Service" means for any period, (a) Interest Expense for such period
plus (b) the aggregate amount of regularly scheduled principal payments of
Indebtedness (excluding optional prepayments and balloon principal payments due
on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its consolidated Subsidiaries plus (c) a
percentage of all such regularly scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness (excluding
optional prepayments and balloon principal payments due on maturity in respect
of any Indebtedness) taken into account in calculating Interest Expense, equal
to the greater of (x) the percentage of the principal amount of such
Indebtedness for which the Borrower or any consolidated Subsidiary is liable and
5
(y) the percentage ownership interest in such Investment Affiliate held by the
Borrower and any consolidated Subsidiaries, in the aggregate, without
duplication.
"Default" means an event which, with notice or lapse of time or both,
would become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
"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.
"Defeased Debt" means that portion of debt which has already been defeased
by depositing collateral in the form of obligations supported by the credit of
the United States government in such amounts as are required and permitted under
the terms of the applicable loan documents.
"Designated Lender" means any Person who has been designated by a Lender
to fund Competitive Bid Loans pursuant to a Designation Agreement in the form
attached hereto as Exhibit K.
"Dollars" and "$" mean United States Dollars.
"EBITDA" means, with respect to any Person, income before extraordinary
items, without deduction of any losses related to initial offering costs of
preferred stock which are written off due to the redemption of such preferred
stock, and excluding any gains or losses from pay-off or retirement of debt and
from sales of assets (unless they are the result of Borrower's Integrated
Industrial Solutions activities, which primarily involve merchant development
activities and land sales, as reported by the Borrower so long as the amount
included in EBITDA from such activities does not exceed 20% of the total amount
of EBITDA), as reported by such Person and its Subsidiaries on a consolidated
basis in accordance with GAAP (reduced to eliminate any income from Investment
Affiliates of such Person, any interest income and, with respect to the
Consolidated Operating Partnership, any income from the assets used for Defeased
Debt), plus Interest Expense, depreciation, amortization and income tax (if any)
expense plus a percentage of such income (adjusted as described above) of any
such Investment Affiliate equal to the allocable economic interest in such
Investment Affiliate held by such Person and any Subsidiaries, in the aggregate
(provided that no item of income or expense shall be included more than once in
such calculation even if it falls within more than one of the foregoing
categories).
"Effective Date" means each Borrowing Date and, if no Borrowing Date has
occurred in the preceding calendar month, the first Business Day of each
calendar month.
"Environmental Laws" means any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental
6
Authority having jurisdiction over the Borrower, its Subsidiaries or Investment
Affiliates, or their respective assets, and regulating 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 operations of the Borrower, any Investment
Affiliate, or any Subsidiary or any of their respective assets or Properties.
"Equity Value" is defined in Section 10.10 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
"Event of Default" means any event set forth in Article X hereof.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office of such
Lender's applicable Lending Installation is located.
"Existing Credit Agreement" means that certain Second Amended and Restated
Unsecured Revolving Credit Agreement dated as of September 27, 2002, as amended.
"Extension Notice" is defined in Section 2.2 hereof.
"Facility" means the unsecured revolving credit facility made available
pursuant to this Agreement.
"Facility Fee" and "Facility Fee Rate" are defined in Section 2.7(b).
"Facility Letter of Credit" means a Financial Letter of Credit or
Performance Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in Section 3.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"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.
7
"FIMC" means First Industrial Mortgage Corporation, a Delaware
corporation, and the sole general partner of the Mortgage Partnership. FIMC is a
wholly-owned subsidiary of the General Partner.
"Financial Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank (i) to repay money borrowed by or advanced to or for the account of
the account party or (ii) to make any payment on account of any indebtedness
undertaken by the account party, in the event the account party fails to fulfill
its obligation to the beneficiary.
"Financing Partnership" means First Industrial Financing Partnership,
L.P., a Delaware limited partnership. Borrower and General Partner, either
directly or indirectly, collectively own 100% of the partnership interests of
the Financing Partnership.
"Fitch" means Fitch, Inc.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the Lenders
at such time.
"Funds From Operations" for any period means GAAP net income, as adjusted
by (i) adding back any losses related to initial offering costs of preferred
stock which are written off due to the redemption of such preferred stock, (ii)
excluding gains and losses from property sales (unless they are the result of
Borrower's Integrated Industrial Solutions activities, which primarily involve
merchant development activities and land sales, as reported by the Borrower),
debt restructurings and property write-downs and adjusted for the non-cash
effect of straight-lining of rents, (iii) straight-lining various ordinary
operating expenses which are payable less frequently than monthly (e.g., real
estate taxes), and (iv) adding back depreciation, amortization and all non-cash
items. Annualized Funds From Operations for any Person will be calculated by
annualizing actual Funds From Operations for the most recently ended fiscal
quarter. In calculating Funds From Operations, no deduction shall be made from
net income for closing costs and other one-time charges associated with the
formation and capitalization of such Person.
"GAAP" means generally accepted accounting principles in the United States
of America consistent with those utilized in preparing the audited financial
statements of the Borrower required hereunder.
"General Partner" means First Industrial Realty Trust, Inc., a Maryland
corporation that is listed on the New York Stock Exchange and is qualified as a
real estate investment trust. General Partner is the sole general partner of
Borrower.
8
"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.
"Gross Revenues" means total revenues, calculated in accordance with GAAP.
"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.
"Guaranty" means the Guaranty executed by the General Partner in the form
attached hereto as Exhibit D.
"Implied Capitalization Value" means for any Person as of any date, the
sum of (i) the quotient of (x) the Adjusted EBITDA for such Person during the
most recent four fiscal quarters (which Adjusted EBITDA shall exclude any
Adjusted EBITDA attributable to all assets under development or Rollover
Projects, and which Adjusted EBITDA attributable to each Project which was
formerly a Rollover Project shall not be less than zero), and (y) the Applicable
Cap Rate, plus (ii) an amount equal to fifty percent (50%) of the then current
book value of each asset under development under GAAP other than 100% Preleased
Assets Under Development, plus (iii) an amount equal to one hundred percent
(100%) of the then-current book value of each 100% Preleased Asset Under
Development, provided that in no event shall the aggregate amount added to
Implied Capitalization Value pursuant to clauses (ii) and (iii) exceed ten
percent (10%) of the Implied Capitalization Value, plus (iv) with respect to
each Rollover Project, an amount equal to the greater of (A) 50% of the
then-current book value, determined in accordance with GAAP, of such Rollover
Project, and (B) the amount determined by dividing the Property Operating Income
for such Rollover Project for the most recent four fiscal quarters by the
Applicable Cap Rate (provided that the Rollover Projects shall at no time
comprise more than
9
10% of Implied Capitalization Value), plus (v) an amount equal to 100% of
unrestricted cash and unrestricted cash equivalents, including any cash on
deposit with a qualified intermediary with respect to a deferred tax-free
exchange (and specifically excluding any cash or cash equivalents being used to
support Defeased Debt), plus (vi) an amount equal to 100% of the then-current
book value, determined in accordance with GAAP, of all first mortgage
receivables on income producing commercial properties, provided that in no event
shall the aggregate amount added to Implied Capitalization Value pursuant to
this clause (vi) exceed ten percent (10%) of Implied Capitalization Value. For
purposes of computing the Implied Capitalization Value, (A) Adjusted EBITDA may
be increased from quarter to quarter by the amount of net cash flow from new
leases of space at the Properties approved by Administrative Agent (where such
net cash flow has not then been included in EBITDA) which have a minimum term of
one year and (B) Properties which either (i) were acquired during the most
recent four fiscal quarters and/or (ii) were previously assets under development
under GAAP but which have been completed during such four quarter period and
have at least some tenants in possession of the respective leased spaces and
conducting business operations therein each will be included in the calculation
of Implied Capitalization Value using pro forma EBITDA for such four quarter
period, so long as a "new acquisition/opening summary" form is submitted to, and
approved by, Administrative Agent for each new acquisition or newly-opened
Property during such four quarter period.
"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 and other accounts payable, and accrued expenses
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 obligations
of such Person under financing leases and capital leases, (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 Consolidated Operating
Partnership, Guarantee Obligations of any member of the Consolidated Operating
Partnership in respect of primary obligations of any other member of the
Consolidated Operating Partnership), (g) all reimbursement obligations of such
Person for letters of credit and other contingent liabilities, (h) Net
▇▇▇▇-to-Market Exposure under Rate Management Transactions, (i) Rate Management
Obligations, (j) 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, (k)
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, and (l) such Person's pro rata share of debt in Investment
Affiliates and any loans where such Person is liable as a general partner.
"Insolvency" means insolvency as defined in the United States Bankruptcy
Code, as amended. "Insolvent" when used with respect to a Person, shall refer to
a Person who satisfies the definition of Insolvency.
"Interest Expense" means all interest expense of the Consolidated
Operating Partnership determined in accordance with GAAP plus (i) capitalized
interest not covered by an interest reserve from a loan facility, plus (ii) the
allocable portion (based on liability) of any accrued or
10
paid interest incurred on any obligation for which the Consolidated Operating
Partnership is wholly or partially liable under repayment, interest carry, or
performance guarantees, or other relevant liabilities, plus (iii) the allocable
percentage of any accrued or paid interest incurred on any Indebtedness of any
Investment Affiliate, whether recourse or non-recourse, equal to the applicable
economic interest in such Investment Affiliate held by the Consolidated
Operating Partnership, in the aggregate, 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; provided, however, that "Interest Expense"
shall not include interest on the loans after they became Defeased Debt.
"Interest Period" means either an Absolute Interest Period or a LIBOR
Interest Period.
"Investment Affiliate" means any Person in which the Consolidated
Operating Partnership, directly or indirectly, has an ownership interest, whose
financial results are not consolidated under GAAP with the financial results of
the Consolidated Operating Partnership on the consolidated financial statements
of the Consolidated Operating Partnership.
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent with respect to a Competitive Bid Quote
Request in the form attached as Exhibit C-2 hereto.
"Issuance Date" is defined in Section 3.4(a)(3).
"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit, the
Lender which issues such Facility Letter of Credit. Bank One shall be the sole
Issuing Bank.
"Lenders" means, collectively, Bank One, and the other Persons executing
this Agreement in such capacity, or any Person which subsequently executes and
delivers any amendment hereto in such capacity and each of their respective
permitted successors and assigns. Where reference is made to "the Lenders" in
any Loan Document it shall be read to mean "all of the Lenders".
"Lending Installation" means any U.S. office of any Lender authorized to
make loans similar to the Advances described herein.
"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.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"LIBOR Advance" means an Advance that bears interest at the Adjusted LIBOR
Rate, whether a ratable Advance based on the LIBOR Applicable Margin or a
Competitive Bid Loan based on a Competitive LIBOR Margin.
11
"LIBOR Applicable Margin" means, as of any date with respect to any LIBOR
Advance, the Applicable Margin in effect for such LIBOR Advance as determined in
accordance with Section 2.6 hereof.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a period
of one, two, three or six months (to the extent that periods in excess of three
months are generally available from the Lenders), as selected in advance by the
Borrower, or a period of less than one month, as selected in advance by the
Borrower with the consent of the Administrative Agent.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof, any filing or
agreement to file a financing statement as debtor under the Uniform Commercial
Code on any property leased to any Person under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination
agreement in favor of another Person).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant
to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, the Guaranty and any and
all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to
time.
"Market Value Net Worth" means at any time, the Implied Capitalization
Value of a Person at such time minus the Indebtedness of such Person at such
time.
"Material Adverse Effect" means, with respect to any matter, that such
matter in the Required Lenders' good faith judgment may (x) materially and
adversely affect the business, properties, condition or results of operations of
the Consolidated Operating Partnership taken as a whole, or (y) constitute a
non-frivolous challenge to the validity or enforceability of any material
provision of any Loan Document against any obligor party thereto.
"Material Adverse Financial Change" shall be deemed to have occurred if
the Required Lenders, in their good faith judgment, determine that a material
adverse financial change has occurred which could prevent timely repayment of
any Advance hereunder or materially impair Borrower's ability to perform its
obligations under any of the Loan Documents.
"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,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means September 28, 2007, subject to extension pursuant to
the terms and conditions of Section 2.2 hereof or such earlier date on which the
principal balance of the Facility and all other sums due in connection with the
Facility shall be due as a result of the acceleration of the Facility.
12
"Monetary Default" means any Default involving Borrower's failure to pay
any of the Obligations when due.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Mortgage Partnership" means First Industrial Mortgage L.P., a Delaware
limited partnership. FIMC is the sole general partner of the Mortgage
Partnership and Borrower is the sole limited partner.
"Net ▇▇▇▇-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of unwinding such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of unwinding
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"Note" means the promissory note payable to the order of each Lender in
the amount of such Lender's maximum Commitment in the form attached hereto as
Exhibit B-1 (collectively, the "Notes").
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or any or all of the Lenders arising under
this Agreement or any of the other Loan Documents.
"100% Preleased Assets Under Development" means Preleased Assets Under
Development which have one hundred percent (100%) of its projected total
rentable area leased at market rates to third party tenants similar to those at
Borrower's other properties.
"Other Taxes" has the meaning set forth in Section 4.5(ii).
"Payment Date" means the last Business Day of each calendar quarter.
"Participants" is defined in Section 13.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable percentage
of the then-current Aggregate Commitment represented by such Lender's
then-current Commitment.
"Performance Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank to make payment on account of any default by the account party in
the performance of a nonfinancial or commercial obligation.
"Permitted Liens" are defined in Section 9.6 hereof.
13
"Person" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of ERISA,
whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"Preleased Assets Under Development" means, as of any date of
determination, any Project which (i) is under construction and then treated as
an asset under development under GAAP, and (ii) has, as of such date, at least
fifty percent (50%) of its projected total rentable area leased at market rates
to third party tenants similar to those at Borrower's other properties, 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;
provided, however, in no event shall Preleased Assets Under Development include
any Project for more than 365 days from the date such Project is initially so
designated under GAAP.
"Presold Assets Under Development" means, as of any date of determination,
any Project (i) which is treated as an asset under development under GAAP, (ii)
which is located in the United States of America, and (iii) which has been
presold under a binding purchase and sale agreement with an unaffiliated third
party; provided, however, in no event shall any Project be included in such
category of "Presold Assets Under Development" for more than three hundred
sixty-five (365) days from the date such Project is initially so designated
under GAAP.
"Prime Applicable Margin" means the Applicable Margin in effect for an
Adjusted Prime Rate Advance as determined in accordance with Section 2.6 hereof.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced by the Administrative Agent or its parent from time to time (which is
not necessarily the lowest rate charged to any customer) changing when and as
such prime rate changes.
"Project" means any real estate asset which is 100% owned by the Borrower
or by any Wholly-Owned Subsidiary and which is operated as an industrial
property.
"Property" means each parcel of real property owned or operated by the
Borrower, any Subsidiary or Investment Affiliate.
"Property Operating Income" means, with respect to any Property, for any
period, earnings from rental operations (computed in accordance with GAAP but
without deduction for reserves) attributable to such Property plus depreciation,
amortization and interest expense with respect to such Property 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). The earnings from
rental operations reported for the immediately preceding fiscal quarter 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 such fiscal quarter and to exclude earnings during such
quarter from any property not owned as of the end of the quarter.
14
"Purchasers" is defined in Section 13.3.1 hereof.
"Purpose Credit" has the meaning ascribed to it in Regulation U of the
Board of Governors of the Federal Reserve System.
"Qualified Officer" means, with respect to any entity, the chief financial
officer, chief accounting officer or controller of such entity if it is a
corporation or of such entity's general partner if it is a partnership.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered by the
Borrower which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or other financial
measures.
"Rate Management Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Option" means the Adjusted Prime Rate, the Adjusted LIBOR Rate or
the Absolute Rate (only as applicable to Competitive Bid Loans). The Rate Option
in effect on any date shall always be the Adjusted Prime Rate unless the
Borrower has properly selected the Adjusted LIBOR Rate pursuant to Section 2.10
hereof or a Competitive Bid Loan pursuant to Section 2.16 hereof.
"Rating Period" means any period during the term of the Facility during
which the Borrower's or General Partner's long-term, senior unsecured debt has
been rated by at least two of S&P, ▇▇▇▇▇'▇, and Fitch and the lower of the
highest two ratings is at least BBB- (S&P) or Baa3 (▇▇▇▇▇'▇) or an equivalent
rating from Fitch.
"Regulation D" means Regulation D 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
reserve requirements applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
15
"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 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 waivers 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 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.
"Reserve Requirement" means, with respect to a LIBOR Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Rollover Projects" means those Projects which, due to no or low occupancy
at such Project, have a value, determined by dividing the Property Operating
Income for such a Project for the most recent four fiscal quarters by the
Applicable Cap Rate, of less than 50% of book value, provided that a Project
shall no longer be treated as a Rollover Project after: (i) a period of six
consecutive full fiscal quarters has elapsed since such Project was first
included as a Rollover Project, or (ii) such Project has a value, determined by
dividing the Property Operating Income for such Project for the most recent four
fiscal quarters by the Applicable Cap Rate, of greater than 50% of book value.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Senior Preferred Stock" means for any Person, any preferred stock issued
by such Person which is not typical preferred stock but instead is both (i)
redeemable by the holders thereof on any fixed date or upon the occurrence of
any event and (ii) as to payment of dividends or amounts on liquidation, either
guaranteed by any direct or indirect subsidiary of such Person or secured by any
property of such Person or any direct or indirect subsidiary of such Person.
"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, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding $30,000,000.
16
"Swingline Lender" shall mean Bank One, in its capacity as a Lender.
"Swingline Loan" means a Loan made by the Swingline Lender under the
special availability provisions described in Section 2.15 hereof.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Total Liabilities" means all Indebtedness plus all other GAAP liabilities
of the Borrower and its Subsidiaries.
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means any Project which as of any date of
determination, (a) is not subject to any Liens other than Permitted Liens set
forth in Sections 9.6(i) through 9.6(v), (b) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset) which prohibits or limits the ability
of the Borrower, or its Wholly-Owned Subsidiaries, as the case may be, to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the Borrower, or any of its Wholly-Owned 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 not subject to any Liens
other than Permitted Liens set forth in Sections 9.6(i) through 9.6(v)) on any
assets or Capital Stock of the Borrower or any of its Wholly-Owned Subsidiaries
or would entitle any Person to the benefit of any Lien (but excluding the
Permitted Liens set forth in Sections 9.6(i) through 9.6(v)) on such assets or
Capital Stock upon the occurrence of any contingency (including, without
limitation, pursuant to an "equal and ratable" clause), (d) is not the subject
of any material architectural/engineering issue, as evidenced by a certification
of Borrower, and (e) is materially compliant with the representations and
warranties in Article VI below. Notwithstanding the foregoing, if any Project is
a "Superfund" site under federal law or a site identified in writing by the
jurisdiction in which such Project is located as having significant
environmental contamination under applicable state law, Borrower shall so advise
the Lenders in writing and the Required Lenders shall have the right to request
from Borrower a current detailed environmental assessment (or one which is not
more than two years old for Unencumbered Assets owned as of the Agreement
Execution Date), and, if applicable, a written estimate of any remediation costs
from a recognized environmental contractor and to exclude any such Project from
Unencumbered Assets at their election. No Project of a Wholly-Owned Subsidiary
shall be deemed to be unencumbered unless both such Project and all Capital
Stock of such Wholly-Owned Subsidiary is unencumbered and neither such
Wholly-Owned Subsidiary nor any other intervening Wholly-Owned Subsidiary
between the Borrower and such Wholly-Owned Subsidiary has any Indebtedness for
borrowed money (other than Indebtedness due to the Borrower).
"Unimproved Land" means land which constitutes a single tax parcel or
separately platted lot and on which construction of an industrial building has
not commenced.
"Value of Unencumbered Assets" means, as of any date, the sum of (a) the
value of all Unencumbered Assets that are not assets under development under
GAAP (determined in the
17
manner set forth below), plus (b) any unrestricted cash, including any cash on
deposit with a qualified intermediary with respect to a deferred tax-free
exchange, plus (c) an amount equal to 100% of the then-current book value,
determined in accordance with GAAP, of each first mortgage receivable secured by
an income producing commercial property, provided that such first mortgage
receivable is not subject to any Lien, plus (d) 100% of the then current book
value of each Presold Asset Under Development that is also an Unencumbered
Asset, plus (e) 100% of the then current book value of each 100% Preleased Asset
Under Development that is also an Unencumbered Asset, plus (f) 50% of the then
current book value of each other asset under development under GAAP that
constitutes an Unencumbered Asset (provided that in no event shall the aggregate
amount added to Value of Unencumbered Assets from the items forth in clauses
(b), (c), (d), (e) and (f) shall not exceed 20% of the total Value of
Unencumbered Assets), plus (g) with respect to each Rollover Project, an amount
equal to the greater of (A) 50% of the then-current book value, determined in
accordance with GAAP, of such Rollover Project, and (B) the amount determined by
dividing the Property Operating Income for such Rollover Project for the most
recent four fiscal quarters by the Applicable Cap Rate, (provided that the
Rollover Projects shall at no time comprise more than 10% of the Value of
Unencumbered Assets). Unencumbered Assets that are not assets under development
under GAAP shall be valued by dividing the Property Operating Income for such
Project for the most recent four fiscal quarters by the Applicable Cap Rate
(provided that for the purpose of such calculation, the Property Operating
Income of each Unencumbered Asset that was formerly a Rollover Project shall in
no event be less than zero). If a Project has been acquired during such
calculation period then Borrower shall be entitled to include pro forma Property
Operating Income from such property for the entire calculation period in the
foregoing calculation, except for purposes of the financial covenant comparing
the Property Operating Income from Unencumbered Assets during a quarter to Debt
Service for such quarter. If a Project is no longer owned as of the date of
calculation, then no value shall be included based on capitalizing Property
Operating Income from such Project, except for purposes of such financial
covenant comparing the Property Operating Income from Unencumbered Assets during
a quarter to Debt Service for such quarter.
"Wholly-Owned Subsidiary" means a member of the Consolidated Operating
Partnership 100% of the ownership interests in which are owned, directly or
indirectly, by the Borrower and the General Partner in the aggregate.
The foregoing definitions shall be equally applicable to both the singular
and the plural forms of the defined terms.
1.2. Financial Standards. All financial computations required of a Person
under this Agreement shall be made, and all financial information required under
this Agreement shall be prepared, in accordance with GAAP, except that if any
Person's financial statements are not audited, such Person's financial
statements shall be prepared in accordance with the same sound accounting
principles utilized in connection with the financial information submitted to
Lenders with respect to the Borrower or the General Partner or the Properties in
connection with this Agreement and shall be certified by an authorized
representative of such Person.
18
Article II.
THE FACILITY
2.1. The Facility.
(a) Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrower and General
Partner contained herein, Lenders agree, severally and not jointly, to
make Advances through the Administrative Agent to Borrower from time to
time prior to the Maturity Date, provided that the making of any such
Advance will not cause the then Allocated Facility Amount to exceed the
then-current Aggregate Commitment. The Advances may be ratable Adjusted
Prime Rate Advances, ratable LIBOR Advances, non-pro rata Swingline Loans
or non-pro rata Competitive Bid Loans. Except as provided in Sections 2.15
and 2.16 hereof, each Lender shall fund its Percentage of each such
Advance and no Lender will be required to fund any amounts which when
aggregated with such Lender's Percentage of (i) all other Advances (other
than Competitive Bid Loans) then outstanding, (ii) all Swingline Advances
and (iii) all Facility Letter of Credit Obligations would exceed such
Lender's then-current Commitment. This facility ("Facility") is a
revolving credit facility and, subject to the provisions of this
Agreement, Borrower may request Advances hereunder, repay such Advances
and reborrow Advances at any time prior to the Maturity Date.
(b) The Facility created by this Agreement, and that Commitment of
each Lender to lend hereunder, shall terminate on the Maturity Date,
unless sooner terminated in accordance with the terms of this Agreement.
(c) In no event shall the Aggregate Commitment exceed Four Hundred
Million Dollars ($400,000,000).
2.2. Principal Payments and Extension Option. Any outstanding Advances
(other than Competitive Bid Loans) and all other unpaid Obligations shall be
paid in full by the Borrower on the Maturity Date. Each Competitive Bid Loan
shall be paid in full on the last day of the applicable Interest Period as
described in Section 2.16 below. The Maturity Date can be extended for extension
periods of one year each upon notice to the Administrative Agent not later than
the date which is two years prior to the Maturity Date with respect to the first
such extension of the Maturity Date and not later than each anniversary of such
date thereafter for each subsequent extension of the Maturity Date (each an
"Extension Notice"), if (i) no Default has occurred and is continuing at the
time of such notice and at the time of the then applicable Maturity Date, (ii)
all of the Lenders agree to such extension, (iii) all prior extensions have been
elected by the Borrower and accepted by the Lenders, and (iv) the Borrower pays,
on the first business day of such extension period, an extension fee to the
Administrative Agent for the account of each Lender equal to (i) if such Lender
was a party to this Agreement as of the Agreement Execution Date, one-half (1/2)
of the upfront fee (expressed as a percentage) paid to such Lender pursuant to
the amount of such Lender's Commitment on that date, as applied to the
Commitment of such Lender that will be in effect during such extension or (ii)
if such Lender first became a Lender after the Agreement Execution Date,
one-half (1/2) of the upfront fee that would have been paid to such Lender
pursuant to such Lender's Commitment if such Lender had been a party to this
Agreement as of the Agreement Execution Date and had committed to and
19
been allocated a Commitment equal to the Commitment of such Lender that will be
in effect during such extension. If the Borrower gives an Extension Notice to
the Administrative Agent, the Administrative Agent shall notify the Lenders
within 10 days of receipt of such request. The Lenders shall have 30 days after
receipt by each such Lender of an Extension Notice to notify Administrative
Agent as to whether they accept or reject such extension request and
Administrative Agent shall notify Borrower and the Lenders promptly thereafter
of the acceptance or rejection of the Lenders of Borrower's request to extend
the Maturity Date. Any Lender not responding shall be deemed to have rejected
the extension request. If the foregoing conditions are satisfied other than the
condition requiring the consent of all Lenders, then Borrower shall have the
right to replace any Lender that does not agree to the extension provided that
Borrower notifies such Lender that it has elected to replace such Lender and
notifies such Lender and the Administrative Agent of the identity of the
proposed replacement Lender no later than the date six (6) months after the date
of the applicable Extension Notice. The Lender being replaced shall assign its
Percentage of the Aggregate Commitment and its rights and obligations under this
Facility to the replacement Lender in accordance with the requirements of
Section 13.3 hereof and the replacement Lender shall assume such Percentage of
the Aggregate Commitment and the related obligations under this Facility prior
to the Maturity Date to be extended, all pursuant to an assignment and
assumption agreement substantially in the form of Exhibit J hereto. The purchase
by the replacement Lender shall be at par (plus all accrued and unpaid interest
and any other sums owed to such Lender being replaced hereunder) which shall be
paid to the Lender being replaced upon the execution and delivery of the
assignment.
2.3. Requests for Advances; Responsibility for Advances. Ratable Advances
shall be made available to Borrower by Administrative Agent in accordance with
Section 2.1(a) and Section 2.10(a) hereof. The obligation of each Lender to fund
its Percentage of each ratable Advance shall be several and not joint.
2.4. Evidence of Credit Extensions. The Advances of each Lender
outstanding at any time (other than Competitive Bid Loans) shall be evidenced by
the Notes. Each Note executed by the Borrower shall be in a maximum principal
amount equal to each Lender's Percentage of the current Aggregate Commitment.
Each Lender shall record Advances and principal payments thereof on the schedule
attached to its Note or, at its option, in its records, and each Lender's record
thereof shall be conclusive absent Borrower furnishing to such Lender conclusive
and irrefutable evidence of an error made by such Lender with respect to that
Lender's records. Notwithstanding the foregoing, the failure to make, or an
error in making, a notation with respect to any Advance shall not limit or
otherwise affect the obligations of Borrower hereunder or under the Notes to pay
the amount actually owed by Borrower to Lenders.
2.5. Ratable and Non-Pro Rata Loans. Each Advance hereunder shall consist
of Loans made from the several Lenders ratably in proportion to their
Percentages, except for Swingline Loans which shall be made by the Swingline
Lender in accordance with Section 2.15 and Competitive Bid Loans which may be
made on a non-pro rata basis by one or more of the Lenders in accordance with
Section 2.16. The ratable Advances may be Adjusted Prime Rate Advances, LIBOR
Advances or a combination thereof, selected by the Borrower in accordance with
Sections 2.9 and 2.10.
2.6. Applicable Margins. The Prime Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different types of Advances shall
20
vary from time to time in accordance with the ratings for Borrower's or General
Partner's long-term, senior unsecured debt as follows:
Rating Period:
LIBOR Prime
Rating Level of Lower of Two Applicable Applicable
Highest Ratings* Margin Facility Fee Margin
---------------- ------ ------------ ------
A-/A3 0.55% 0.15% 0
BBB+/Baa1 0.60% 0.20% 0
BBB/Baa2 0.70% 0.20% 0
BBB-/Baa3 0.90% 0.25% 0
Below BBB- or Baa3 1.20% 0.30% 0.20%
* The letter categories used above are established by reference
to S&P and ▇▇▇▇▇'▇ categories, respectively. At least one of
S&P or ▇▇▇▇▇'▇ ratings must always be included in the two
ratings used.
All margins and fees change as and when the applicable rating level
changes. In the event an agency issues different ratings for the Borrower and
the General Partner, then the higher rating of the two entities shall be deemed
to be the rating from such agency.
2.7. Other Fees.
(a) The Borrower shall pay the fee due to the Administrative Agent
in connection with Competitive Bid Loans as described in Section 2.16. The
Borrower agrees to pay all other fees payable to the Administrative Agent
and Banc One Capital Markets, Inc. pursuant to the Borrower's prior letter
agreements with them.
(b) The Borrower shall pay a fee ("Facility Fee") to the
Administrative Agent for the account of the Lenders equal to the
applicable Facility Fee Rate in effect from time to time, as shown in
Section 2.6 hereof, times the then Aggregate Commitment, to be shared
among the Lenders based on their respective Percentages. The Facility Fee
shall be paid quarterly in arrears on the Payment Date.
2.8. Minimum Amount of Each Advance. Each LIBOR Advance shall be in the
minimum amount of $2,000,000 (and in multiples of $100,000 if in excess
thereof), and each Adjusted Prime Rate Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $100,000 if in excess thereof), provided,
however, that any Adjusted Prime Rate Advance may be in the amount of the unused
Aggregate Commitment.
2.9. Interest.
(a) The outstanding principal balance under the Notes shall bear
interest from time to time at a rate per annum equal to:
(i) the Adjusted Prime Rate; or
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(ii) at the election of Borrower with respect to all or
portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest accrued on each Advance shall be
payable on the first day of each calendar month in arrears from time to
time while such Advance is outstanding and on the Maturity Date or the
effective date of any termination in full of the Aggregate Commitment
under Section 2.17. Interest shall not be payable for the day of any
payment on the amount paid if payment is received by Administrative Agent
prior to noon (Chicago time). If any payment of principal or interest
under the Notes shall become due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case
of a payment of principal, such extension of time shall be included in
computing interest due in connection with such payment; provided that for
purposes of Section 10.1 hereof, any payments of principal described in
this sentence shall be considered to be "due" on such next succeeding
Business Day.
2.10. Selection of Rate Options and LIBOR Interest Periods.
(a) Borrower, from time to time, may select the Rate Option and,
in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to
each LIBOR Advance. Borrower shall give Administrative Agent irrevocable
notice (a "Borrowing Notice" not later than 11:00 a.m. (Chicago time) (i)
at least one Business Day prior to an Adjusted Prime Rate Advance, (ii) at
least three (3) Business Days prior to a ratable LIBOR Advance, and (iii)
not later than 11:00 a.m. (Chicago time) on the Borrowing Date for each
Swingline Loan, specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the LIBOR Interest
Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in Section 5.2 and otherwise comply with the
conditions set forth in Section 5.2 for Advances. Administrative Agent shall
provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
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. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
22
(b) Administrative Agent shall, as soon as practicable after
receipt of a Borrowing Notice, determine the Adjusted LIBOR Rate
applicable to the requested ratable LIBOR Advance and inform Borrower and
Lenders of the same. Each determination of the Adjusted LIBOR Rate by
Administrative Agent shall be conclusive and binding upon Borrower in the
absence of manifest error.
(c) If Borrower shall prepay a LIBOR Advance other than on the
last day of the LIBOR Interest Period applicable thereto, Borrower shall
be responsible to pay all amounts due to Lenders as required by Section
4.4 hereof. The Lenders shall not be obligated to match fund their LIBOR
Advances.
(d) As of the end of each LIBOR Interest Period selected for a
ratable LIBOR Advance, the interest rate on the LIBOR Advance will become
the Adjusted Prime Rate, unless Borrower has once again selected a LIBOR
Interest Period in accordance with the timing and procedures set forth in
Section 2.10(g).
(e) The right of Borrower to select the Adjusted LIBOR Rate for an
Advance pursuant to this Agreement is subject to the availability to
Lenders of a similar option. If Administrative Agent determines that (i)
deposits of Dollars in an amount approximately equal to the LIBOR Advance
for which the Borrower wishes to select the Adjusted LIBOR Rate are not
generally available at such time in the London interbank eurodollar
market, or (ii) the rate at which the deposits described in subsection (i)
herein are being offered will not adequately and fairly reflect the costs
to Lenders of maintaining an Adjusted LIBOR Rate on an Advance or of
funding the same in such market for such LIBOR Interest Period, or (iii)
reasonable means do not exist for determining an Adjusted LIBOR Rate, or
(iv) the Adjusted LIBOR Rate would be in excess of the maximum interest
rate which Borrower may by law pay, then in any of such events,
Administrative Agent shall so notify Borrower and Lenders and such Advance
shall bear interest at the Adjusted Prime Rate.
(f) In no event may Borrower elect a LIBOR Interest Period which
would extend beyond the Maturity Date. Unless Lenders agree thereto, in no
event may Borrower have more than ten (10) different LIBOR Interest
Periods for LIBOR Advances outstanding at any one time.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time, subject to the
other provisions of this Section 2.10, to convert all or any part of
a ratable Advance into any other type of Advance; provided that any
conversion of a ratable LIBOR Advance shall be made on, and only on,
the last day of the LIBOR Interest Period applicable thereto.
(ii) Adjusted Prime Rate Advances shall continue as Adjusted
Prime Rate Advances unless and until such Adjusted Prime Rate
Advances are converted into ratable LIBOR Advances pursuant to a
Conversion/Continuation Notice from Borrower in accordance with
Section 2.10(g)(iv). Ratable LIBOR Advances shall continue until the
end of the then applicable LIBOR Interest
23
Period therefor, at which time each such Advance shall be
automatically converted into an Adjusted Prime Rate Advance unless
the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice in accordance with Section
2.10(g)(iv) requesting that, at the end of such LIBOR Interest
Period, such Advance either continue as an Advance of such type for
the same or another LIBOR Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Sections 2.10(g)(i) or (g)(ii), no Advance may be converted into a
LIBOR Advance or continued as a LIBOR Advance (except with the
consent of the Required Lenders) when any Monetary Default or Event
of Default has occurred and is continuing.
(iv) 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 11:00 a.m. (Chicago time) on the Business Day immediately
preceding the date of the requested conversion, in the case of a
conversion into an Adjusted Prime Rate Advance, or 11:00 a.m.
(Chicago time) at least three (3) Business Days prior to the date of
the requested conversion or continuation, in the case of a
conversion into or continuation of a ratable LIBOR Advance,
specifying: (1) the requested date (which shall be a Business Day)
of such conversion or continuation; (2) the amount and type of the
Advance to be converted or continued; and (3) the amounts 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
ratable LIBOR Advance, the duration of the LIBOR Interest Period
applicable thereto.
2.11. Method of Payment. All payments of the Obligations hereunder shall
be made, without set-off, deduction, or counterclaim, in immediately available
funds to Administrative Agent at Administrative Agent's address specified
herein, or at any other Lending Installation of Administrative Agent specified
in writing by Administrative Agent to Borrower, by noon (local time) on the date
when due and shall be applied ratably by Administrative Agent among Lenders.
Each payment delivered to Administrative Agent for the account of any Lender
shall be delivered promptly by Administrative Agent to such Lender in the same
type of funds that Administrative Agent received at its address specified herein
or at any Lending Installation specified in a notice received by Administrative
Agent from such Lender. Administrative Agent is hereby authorized to charge the
account of Borrower maintained with Bank One for each payment of principal,
interest and fees as it becomes due hereunder.
2.12. Default. Notwithstanding the foregoing, during the continuance of a
Monetary Default or an Event of Default, Borrower shall not have the right to
request a LIBOR Advance, request a Competitive Bid Loan, select a new LIBOR
Interest Period for an existing ratable LIBOR Advance or convert any Adjusted
Prime Rate Advance to a ratable LIBOR Advance. During the continuance of a
Monetary Default or an Event of Default, at the election of the Required
Lenders, by notice to Borrower, outstanding Advances shall bear interest at the
applicable Default Rates until such Monetary Default or Event of Default ceases
to exist or the Obligations are paid in full.
24
2.13. Lending Installations. Each Lender may book its Advances 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 Borrower, designate a Lending
Installation through which Advances will be made by it and for whose account
payments are to be made.
2.14. Non-Receipt of Funds by Administrative Agent. Unless Borrower or a
Lender, as the case may be, notifies Administrative Agent prior to the date on
which it is scheduled to make payment to Administrative Agent of (i) in the case
of a Lender, an Advance, or (ii) in the case of 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, Administrative Agent may
assume that such payment has been made. 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 Borrower, as the
case may be, has not in fact made such payment to Administrative Agent, the
recipient of such payment shall, on demand by Administrative Agent, repay to
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 Administrative Agent until the date 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 (as determined by Administrative
Agent) for such day or (ii) in the case of payment by Borrower, the interest
rate applicable to the relevant Advance.
2.15. Swingline Loans. In addition to the other options available to
Borrower hereunder, the Swingline Commitment shall be available for Swingline
Loans subject to the following terms and conditions. Swingline Loans shall be
made available for same day borrowings provided that notice is given in
accordance with Section 2.10 hereof. All Swingline Loans shall bear interest at
the Adjusted Prime Rate and shall be deemed to be Adjusted Prime Rate Advances.
In no event shall the Swingline Lender be required to fund a Swingline Loan if
it would increase the total aggregate outstanding Loans by Swingline Lender
hereunder plus its Percentage of Facility Letter of Credit Obligations to an
amount in excess of its Commitment. Upon request of the Swingline Lender made to
all the Lenders, each Lender irrevocably agrees to purchase its Percentage of
any Swingline Loan made by the Swingline Lender regardless of whether the
conditions for disbursement are satisfied at the time of such purchase,
including the existence of an Event of Default hereunder provided that such
Event of Default did not exist at the time the Swingline Loan was made and
provided further that no Lender shall be required to have total outstanding
Loans (other than Competitive Bid Loans) plus its Percentage of Facility Letters
of Credit to be in an amount greater than its Commitment. Such purchase shall
take place on the date of the request by Swingline Lender so long as such
request is made by noon (Chicago time), otherwise on the Business Day following
such request. All requests for purchase shall be in writing. From and after the
date it is so purchased, each such Swingline Loan shall, to the extent
purchased, (i) be treated as a Loan made by the purchasing Lenders and not by
the selling Lender for all purposes under this Agreement and the payment of the
purchase price by a Lender shall be deemed to be the making of a Loan by such
Lender and shall constitute outstanding principal under such Lender's Note, and
(ii) shall no longer be considered a Swingline Loan except that all interest
accruing on or attributable to such Swingline Loan for the period prior to
25
the date of such purchase shall be paid when due by the Borrower to the
Administrative Agent for the benefit of the Swingline Lender and all such
amounts accruing on or attributable to such Loans for the period from and after
the date of such purchase shall be paid when due by the Borrower to the
Administrative Agent for the benefit of the purchasing Lenders. If prior to
purchasing its Percentage of a Swingline Loan one of the events described in
Section 10.10 shall have occurred and such event prevents the consummation of
the purchase contemplated by preceding provisions, each Lender will purchase an
undivided participating interest in the outstanding Swingline Loan in an amount
equal to its Percentage of such Swingline Loan. From and after the date of each
Lender's purchase of its participating interest in a Swingline Loan, if the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); provided, however, that in the event that such payment was received by
the Swingline Lender and is required to be returned to the Borrower, each Lender
will return to the Swingline Lender any portion thereof previously distributed
by the Swingline Lender to it. If any Lender fails to so purchase its Percentage
of any Swingline Loan, such Lender shall be deemed to be a Defaulting Lender
hereunder. No Swingline Loan shall be outstanding for more than five (5) days at
a time and Swingline Loans shall not be outstanding for more than a total of ten
(10) days during any month.
2.16. Competitive Bid Loans.
(a) Competitive Bid Option. In addition to ratable Advances
pursuant to Section 2.5, but subject to the terms and conditions of this
Agreement (including, without limitation the limitation set forth in
Section 2.1(a) as to the maximum Allocated Facility Amount), the Borrower
may, as set forth in this Section 2.16, but only during a Rating Period,
request the Lenders, prior to the Maturity Date, to make offers to make
Competitive Bid Loans to the Borrower. Each Lender may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this
Section 2.16. Competitive Bid Loans shall be evidenced by the Competitive
Bid Notes.
(b) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.16, it
shall transmit to the Administrative Agent by telecopy a Competitive Bid
Quote Request substantially in the form of Exhibit C-1 hereto so as to be
received no later than (i) 10:00 a.m. (Chicago time) at least five
Business Days prior to the Borrowing Date proposed therein, in the case of
a request for a Competitive LIBOR Margin or (ii) 9:00 a.m. (Chicago time)
at least one Business Day prior to the Borrowing Date proposed therein, in
the case of a request for an Absolute Rate specifying:
(i) the proposed Borrowing Date for the proposed Competitive
Bid Loan,
(ii) the requested aggregate principal amount of such
Competitive Bid Loan,
26
(iii) whether the Competitive Bid Quotes requested are to set
forth a Competitive LIBOR Margin or an Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a Competitive LIBOR Margin
is requested, or the Absolute Interest Period, if an Absolute Rate
is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period (but not more than five Interest Periods) in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall be given
within five Business Days (or such other number of days as the Borrower and the
Administrative Agent may agree) of any other Competitive Bid Quote Request. A
Competitive Bid Quote Request that does not conform substantially to the form of
Exhibit C-1 hereto shall be rejected, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly and in any
event before the close of business on the same Business Day of receipt of
a Competitive Bid Quote Request that is not rejected pursuant to Section
2.16(b), the Administrative Agent shall send to each of the Lenders by
telecopy an Invitation for Competitive Bid Quotes substantially in the
form of Exhibit C-2 hereto, which shall constitute an invitation by the
Borrower to each Lender to submit Competitive Bid Quotes offering to make
the Competitive Bid Loans to which such Competitive Bid Quote Request
relates in accordance with this Section 2.16.
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive
Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.16(d) and must be submitted to the
Administrative Agent by telex or telecopy at its offices not later
than (a) 2:00 p.m. (Chicago time) at least four Business Days prior
to the proposed Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time) on the
proposed Borrowing Date, in the case of a request for an Absolute
Rate (or, in either case upon reasonable prior notice to the
Lenders, such other time and rate as the Borrower and the
Administrative Agent may agree); provided that Competitive Bid
Quotes submitted by Bank One may only be submitted if the
Administrative Agent or Bank One notifies the Borrower of the terms
of the Offer or Offers contained therein no later than 30 minutes
prior to the latest time at which the relevant Competitive Bid
Quotes must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to disbursement
herein, any Competitive Bid Quote so made shall be irrevocable
except with the written consent of the Administrative Agent given on
the instructions of the Borrower.
(ii) Each Competitive Bid Quote shall be in substantially the
form of Exhibit C-3 hereto and shall in any case specify:
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(1) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(2) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount (1) may be greater than, less than or equal to the
Commitment of the quoting Lender, (2) must be at least
$10,000,000 and an integral multiple of $1,000,000, and (3)
may not exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(3) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid Loan,
(4) the minimum amount, if any, of the Competitive Bid
Loan which may be accepted by the Borrower, and
(5) the identity of the quoting Lender, provided that
such Competitive Bid Loan may be funded by such Lender's
Designated Lender as provided in Section 2.16(j), regardless
of whether that is specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any Competitive
Bid Quote that:
(1) is not substantially in the form of Exhibit C-3
hereto or does not specify all of the information required by
Section 2.16(d)(ii),
(2) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit
C-3 hereto,
(3) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes, or
(4) arrives after the time set forth in Section
2.16(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to this
Section 2.16(d)(iii), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practical.
(e) Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.16(d) and (ii)
of any Competitive Bid Quote that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by such
Lender with respect to the same Competitive Bid Quote Request. Any such
subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's
notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest
28
Period specified in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive LIBOR Margins or Absolute
Rate, as the case may be, so offered.
(f) Acceptance and Notice by Borrower. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin or
(ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case
of a request for an Absolute Rate (or, in either case upon reasonable
prior notice to the Lenders, such other time and date as the Borrower and
the Administrative Agent may agree), the Borrower shall notify the
Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.16(e); provided, however, that the
failure by the Borrower to give such notice to the Administrative Agent
shall be deemed to be a rejection of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Competitive Bid Quote in
whole or in part (subject to the terms of Section 2.16(d)(iii)); provided
that:
(i) the aggregate principal amount of all Competitive Bid
Loans to be disbursed on a given Borrowing Date may not exceed the
applicable amount set forth in the related Competitive Bid Quote
Request,
(ii) acceptance of offers may only be made on the basis of
ascending Competitive LIBOR Margins or Absolute Rates, as the case
may be, and
(iii) the Borrower may not accept any offer that is described
in Section 2.16(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Lenders with the same Competitive LIBOR Margins or Absolute Rates,
as the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of which
such offers are accepted shall be allocated by the Administrative Agent
among such Lenders as nearly as possible (in such multiples, not greater
than $1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers provided,
however, that no Lender shall be allocated any Competitive Bid Loan which
is less than the minimum amount which such Lender has indicated that it is
willing to accept. Allocations by the Administrative Agent of the amounts
of Competitive Bid Loans shall be conclusive in the absence of manifest
error. The Administrative Agent shall promptly, but in any event on the
same Business Day, notify each Lender of its receipt of a Competitive Bid
Borrowing Notice and the principal amounts of the Competitive Bid Loans
allocated to each participating Lender.
(h) Administration Fee. The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 per each Competitive
Bid Quote Request transmitted by the Borrower to the Administrative Agent
pursuant to
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Section 2.16(b). Such administration fee shall be payable monthly in
arrears on the first Business Day of each month and on the Maturity Date
(or such earlier date on which the Aggregate Commitment shall terminate or
be cancelled) for any period then ending for which such fee, if any, shall
not have been theretofore paid.
(i) Other Terms. Any Competitive Bid Loan shall not reduce the
Commitment of the Bid Lender making such Competitive Bid Loan (except as
the availability of other Advances is reduced by the increase in the
Allocated Facility Amount due to such Competitive Bid Loan) and each such
Bid Lender shall continue to be obligated to fund its full percentage of
all pro rata Advances under the Facility. In no event can the aggregate
amount of all Competitive Bid Loans at any time exceed the lesser of (i)
50% of the then Aggregate Commitment, or (ii) Two Hundred Million Dollars
($200,000,000.00). Competitive Bid Loans may not be continued and, if not
repaid at the end of the Interest Period applicable thereto, shall
(subject to the conditions set forth in this Agreement) be replaced by new
Competitive Bid Loans made in accordance with this Section 2.16 or by
ratable Advances in accordance with Section 2.10.
(j) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in
Section 2.16(d)(ii)(e). Any Designated Lender which funds a Competitive
Bid Loan shall on and after the time of such funding become the obligee
under such Competitive Bid Loan and be entitled to receive payment thereof
when due. No Lender shall be relieved of its obligation to fund a
Competitive Bid Loan, and no Designated Lender shall assume such
obligation, prior to the time such Competitive Bid Loan is funded.
2.17. Voluntary Reduction of Aggregate Commitment Amount. Upon at least
five (5) days prior irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent, Borrower shall have the
right, without premium or penalty, to terminate the Aggregate Commitment in
whole or in part provided that (a) Borrower may not reduce the Aggregate
Commitment below the Allocated Facility Amount at the time of such requested
reduction, and (b) any such partial termination shall be in the minimum
aggregate amount of Five Million Dollars (U.S. $5,000,000.00) or any integral
multiple of Five Million Dollars (U.S. $5,000,000.00) in excess thereof. Any
partial termination of the Aggregate Commitment shall be applied pro rata to
each Lender's Commitment.
2.18. Increase in Aggregate Commitment. The Borrower shall also have the
right from time to time to increase the Aggregate Commitment up to a maximum of
$400,000,000 by either adding new banks as Lenders (subject to the
Administrative Agent's prior written approval of the identity of such new banks)
or obtaining the agreement, which shall be at such Lender's or Lenders' sole
discretion, of one or more of the then current Lenders to increase its or their
Commitments. Such increases shall be evidenced by the execution and delivery of
an Amendment Regarding Increase in the form of Exhibit L attached hereto by the
Borrower, the Administrative Agent and the new bank or existing Lender providing
such additional Commitment, a copy of which shall be forwarded to each Lender by
the Administrative Agent promptly after execution thereof. On the effective date
of each such increase in the Aggregate Commitment, the Borrower and the
Administrative Agent shall cause the new or existing Lenders providing such
increase, by either funding more than its or their Percentage of new
30
ratable Advances made on such date or purchasing shares of outstanding ratable
Loans held by the other Lenders or a combination thereof, to hold its or their
Percentage of all ratable Advances outstanding at the close of business on such
day. The Lenders agree to cooperate in any required sale and purchase of
outstanding ratable Advances to achieve such result. If such new or existing
Lenders providing the increase purchase shares of outstanding ratable Loans held
by the other Lenders on a date which is not the last day of the applicable
Interest Period, Borrower will indemnify each Lender for any loss or cost
incurred by such Lender resulting from the payment of any breakage fees relating
to a ratable LIBOR Advance funded or maintained in connection with such a
purchase. In no event will such new or existing Lenders providing the increase
be required to fund or purchase a portion of any Competitive Bid Loan or
Swingline Loan to comply with this Section on such date. In no event shall the
Aggregate Commitment exceed $400,000,000 without the approval of all of the
Lenders.
2.19. Application 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 any
of the Lenders in accordance with Section 4.1;
(iii) first to the payment of any fee due pursuant to Section
3.8(b) in connection with the issuance of a Facility Letter of
Credit to the Issuing Bank until such fee is paid in full, then next
to the payment of the Facility Fee and Facility Letter of Credit Fee
to the Lenders, if then due, in that order on a pro rata basis in
accordance with the respective amounts of such fees due to the
Lenders and then finally to the payment of all fees then due to the
Administrative Agent;
(iv) to payment of the full amount of interest and principal
on the Swingline Loans;
(v) first to interest until paid in full and then to
principal for all Lenders (other than Defaulting Lenders) (i) as
allocated by the Borrower (unless an Event of Default exists)
between Competitive Bid Loans and ratable Advances (the amount
allocated to ratable Advances to be distributed in accordance with
the Percentages of the Lenders) or (ii) if an Event of Default
exists, in accordance with the respective Funded Percentages of the
Lenders;
(vi) any other sums due to the Administrative Agent or any
Lender under any of the Loan Documents; and
(vii) 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).
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Article III.
THE LETTER OF CREDIT SUBFACILITY
3.1. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower and the General Partner herein set forth, the Issuing Bank hereby
agrees to issue for the account of Borrower, one or more Facility Letters of
Credit in accordance with this Article III, from time to time during the period
commencing on the Agreement Execution Date and ending on a date one Business Day
prior to the Maturity Date.
3.2. Types and Amounts. The Issuing Bank shall not have any obligation
to:
(i) issue any Facility Letter of Credit if the aggregate
maximum amount then available for drawing under Letters of Credit
issued by such Issuing Bank, after giving effect to the Facility
Letter of Credit requested hereunder, shall exceed any limit imposed
by law or regulation upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if, after giving
effect thereto, either (1) the then applicable Allocated Facility
Amount would exceed the then current Aggregate Commitment, or (2)
the Facility Letter of Credit Obligations would exceed $30,000,000;
(iii) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provision to extend such
date, to a date which is after the Business Day immediately
preceding the Maturity Date; or
(iv) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such
date, to a date which is more than twelve (12) months after the date
of its issuance.
3.3. Conditions. In addition to being subject to the satisfaction of the
conditions contained in Article V hereof, the obligation of the Issuing Bank to
issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
documents and the Loan Documents, the terms of the Loan Documents
shall control) and the proposed Facility Letter of Credit shall be
reasonably satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or decree
of any court, arbitrator or governmental authority shall purport by
its terms to enjoin or restrain the Issuing Bank from issuing the
requested Facility Letter of Credit and no law, rule or regulation
applicable to the Issuing Bank and no request or directive (whether
or not having the force of law) from any governmental
32
authority with jurisdiction over the Issuing Bank shall prohibit or
request that the Issuing Bank refrain from the issuance of Letters
of Credit generally or the issuance of the requested Facility Letter
of Credit in particular; and
(iii) there shall not exist any Default or Event of Default.
3.4. Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the Administrative
Agent at least two (2) Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement (a
"Letter of Credit Request"), a copy of which shall be sent immediately to
all Lenders (except that, in lieu of such written notice, the Borrower may
give the Issuing Bank and the Administrative Agent telephonic notice of
such request if confirmed in writing by delivery to the Issuing Bank and
the Administrative Agent (i) immediately (A) of a telecopy of the written
notice required hereunder which has been signed by an authorized officer,
or (B) of a telex containing all information required to be contained in
such written notice and (ii) promptly (but in no event later than the
requested date of issuance) of the written notice required hereunder
containing the original signature of an authorized officer); such notice
shall be irrevocable and shall specify:
(1) whether the requested Facility Letter of Credit
is, in Borrower's belief, a Financial Letter of Credit or a
Performance Letter of Credit;
(2) the stated amount of the Facility Letter of Credit
requested (which stated amount shall not be less than
$50,000);
(3) the effective date (which day shall be a Business
Day) of issuance of such requested Facility Letter of Credit
(the "Issuance Date");
(4) the date on which such requested Facility Letter
of Credit is to expire;
(5) the purpose for which such Facility Letter of
Credit is to be issued;
(6) the Person for whose benefit the requested
Facility Letter of Credit is to be issued; and
(7) any special language required to be included in
the Facility Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
33
(b) Subject to the terms and conditions of this Article III and
provided that the applicable conditions set forth in Article V hereof have
been satisfied, the Issuing Bank shall, on the Issuance Date, issue a
Facility Letter of Credit on behalf of the Borrower in accordance with the
Letter of Credit Request and the Issuing Bank's usual and customary
business practices unless the Issuing Bank has actually received (i)
written notice from the Borrower specifically revoking the Letter of
Credit Request with respect to such Facility Letter of Credit, (ii)
written notice from a Lender, which complies with the provisions of
Section 3.6(a), or (iii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of
Credit would violate Section 3.2.
(c) The Issuing Bank shall give the Administrative Agent (who
shall promptly notify Lenders) and the Borrower written or telex notice,
or telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Facility Letter of Credit (the "Issuance Notice"), which
shall indicate the Issuing Bank's reasonable determination as to whether
such Facility Letter of Credit is a Financial Letter of Credit or a
Performance Letter of Credit, which determination shall be conclusive
absent manifest error.
(d) The Issuing Bank shall not extend or amend any Facility Letter
of Credit unless the requirements of this Section 3.4 are met as though a
new Facility Letter of Credit was being requested and issued.
3.5. Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower and the
Administrative Agent (who shall promptly notify Lenders) of any draw under
a Facility Letter of Credit. Any such draw shall constitute an Advance of
the Facility in the amount of the Reimbursement Obligation with respect to
such Facility Letter of Credit and shall bear interest from the date of
the relevant drawing(s) under the pertinent Facility Letter of Credit at a
rate selected by Borrower in accordance with Section 2.10 hereof; provided
that if a Monetary Default or an Event of Default exists at the time of
any such drawing(s), then the Borrower shall reimburse the Issuing Bank
for drawings under a Facility Letter of Credit issued by the Issuing Bank
no later than the next succeeding Business Day after the payment by the
Issuing Bank and until repaid such Reimbursement Obligation shall bear
interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank
under or in connection with any Facility Letter of Credit, if taken or
omitted in the absence of willful misconduct or gross negligence, shall
not put the Issuing Bank under any resulting liability to any Lender or,
provided that such Issuing Bank has complied with the procedures specified
in Section 3.4 and such Lender has not given a notice contemplated by
Section 3.6(a) that continues in full force and effect, relieve that
Lender of its obligations hereunder to the Issuing Bank. In determining
whether to pay under any Facility Letter of Credit, the Issuing Bank shall
have no obligation relative to the Lenders other than to confirm that any
documents required to be delivered under such Letter of Credit appear to
have been delivered in compliance, and that they appear to comply on their
face, with the requirements of such Letter of Credit.
3.6. Participation.
34
(a) Immediately upon issuance by the Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in Section
3.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Bank, without recourse,
representation or warranty, an undivided interest and participation equal
to such Lender's Percentage in such Facility Letter of Credit (including,
without limitation, all obligations of the Borrower with respect thereto)
and all related rights hereunder and under the Guaranty and other Loan
Documents; provided that a Letter of Credit issued by the Issuing Bank
shall not be deemed to be a Facility Letter of Credit for purposes of this
Section 3.6 if the Issuing Bank shall have received written notice from
any Lender on or before the Business Day prior to the date of its issuance
of such Letter of Credit that one or more of the conditions contained in
Section 5.2 is not then satisfied, and in the event the Issuing Bank
receives such a notice it shall have no further obligation to issue any
Facility Letter of Credit until such notice is withdrawn by that Lender or
the Issuing Bank receives a notice from the Administrative Agent that such
condition has been effectively waived in accordance with the provisions of
this Agreement. Each Lender's obligation to make further Loans to Borrower
(other than any payments such Lender is required to make under
subparagraph (b) below) or to purchase an interest from the Issuing Bank
in any subsequent letters of credit issued by the Issuing Bank on behalf
of Borrower shall be reduced by such Lender's Percentage of the undrawn
portion of each Facility Letter of Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such
amount to the Issuing Bank pursuant to Section 3.7 hereof, the Issuing
Bank shall promptly notify the Administrative Agent, which shall promptly
notify each Lender of such failure, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account of the
Issuing Bank the amount of such Lender's Percentage of the unreimbursed
amount of such payment, and the Administrative Agent shall promptly pay
such amount to the Issuing Bank. Lender's payments of its Percentage of
such Reimbursement Obligation as aforesaid shall be deemed to be a Loan by
such Lender and shall constitute outstanding principal under such Lender's
Note. The failure of any Lender to make available to the Administrative
Agent for the account of the Issuing Bank its Percentage of the
unreimbursed amount of any such payment shall not relieve any other Lender
of its obligation hereunder to make available to the Administrative Agent
for the account of such Issuing Bank its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made, but no
Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made. Any Lender
which fails to make any payment required pursuant to this Section 3.6(b)
shall be deemed to be a Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing Bank
shall promptly pay to the Administrative Agent and the Administrative
Agent shall promptly pay to each Lender which has funded its participating
interest therein, in immediately available funds, an amount equal to such
Lender's Percentage thereof.
35
(d) Upon the request of the Administrative Agent or any Lender,
the Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and
irrevocable, not subject to any counterclaim, set-off, qualification or
exception whatsoever other than a failure of any such Issuing Bank to
comply with the terms of this Agreement relating to the issuance of such
Facility Letter of Credit, and such payments shall be made in accordance
with the terms and conditions of this Agreement under all circumstances.
3.7. Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of the Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to the Issuing Bank under
or in connection with any Facility Letter of Credit when due, irrespective
of any claim, set-off, defense or other right which the Borrower may have
at any time against any Issuing Bank or any other Person, under all
circumstances, including without limitation any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Facility Letter of Credit or any transferee of any
Facility Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the Issuing
Bank, any Lender, or any other Person, whether in connection with
this Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower and the beneficiary
named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect of any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Event of Default.
(b) In the event any payment by the Borrower received by the
Issuing Bank or the Administrative Agent with respect to a Facility Letter
of Credit and distributed by the Administrative Agent to the Lenders on
account of their participations is thereafter set aside, avoided or
recovered from the Administrative Agent or Issuing Bank in connection with
any receivership, liquidation, reorganization or bankruptcy proceeding,
each Lender
36
which received such distribution shall, upon demand by the Administrative
Agent, contribute such Lender's Percentage of the amount set aside,
avoided or recovered together with interest at the rate required to be
paid by the Issuing Bank or the Administrative Agent upon the amount
required to be repaid by the Issuing Bank or the Administrative Agent.
3.8. Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for the
ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "Facility Letter of Credit Fee") with
respect to each Facility Letter of Credit that is equal to (i) the LIBOR
Applicable Margin in effect from time to time in the case of Financial
Letters of Credit, and (ii) the LIBOR Applicable Margin from time to time
minus 0.25% in the case of Performance Letters of Credit. The Facility
Letter of Credit Fee relating to any Facility Letter of Credit shall be
due and payable in arrears in equal installments on the first Business Day
of each month following the issuance of any Facility Letter of Credit and,
to the extent any such fees are then due and unpaid, on the Maturity Date.
The Administrative Agent shall promptly remit such Facility Letter of
Credit Fees, when paid, to the other Lenders in accordance with their
Percentages thereof. The Borrower shall not have any liability to any
Lender for the failure of the Administrative Agent to promptly deliver
funds to any such Lender and shall be deemed to have made all such
payments on the date the respective payment is made by the Borrower to the
Administrative Agent, provided such payment is received by the time
specified in Section 2.11 hereof.
(b) The Issuing Bank also shall have the right to receive solely
for its own account an issuance fee of 0.15% of the face amount of each
Facility Letter of Credit, payable by the Borrower on the Issuance Date
for each such Facility Letter of Credit. The Issuing Bank shall also be
entitled to receive its reasonable out-of-pocket costs and the Issuing
Bank's standard charges of issuing, amending and servicing Facility
Letters of Credit and processing draws thereunder.
3.9. Letter of Credit Collateral Account. The Borrower hereby agrees that
it will, until the Maturity Date, maintain a special collateral account (the
"Letter of Credit Collateral Account") at the Administrative Agent's office at
the address specified pursuant to Article XV, in the name of the Borrower but
under the sole dominion and control of the Administrative Agent, for the benefit
of the Lenders, and in which the Borrower shall have no interest other than as
set forth in Section 11.1. In addition to the foregoing, the Borrower hereby
grants to the Administrative Agent, for the benefit of the Lenders, a security
interest in and to the Letter of Credit Collateral Account and any funds that
may hereafter be on deposit in such account, including income earned thereon.
The Lenders acknowledge and agree that the Borrower has no obligation to fund
the Letter of Credit Collateral Account unless and until so required under
Section 11.1 hereof.
37
Article IV.
CHANGE IN CIRCUMSTANCES
4.1. Yield Protection. If the adoption of or change in 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,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from
payments due from Borrower (excluding federal and state taxation of
the overall net income of any Lender or applicable Lending
Installation), or changes the basis of such taxation of payments to
any Lender in respect of its Advances, its interest in the Facility
Letters of Credit 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
(iii) imposes any other condition, and the result is to
increase the cost of 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, Letters of Credit issued or
participated in or interest received by it, by an amount deemed
material by such Lender,
then, within fifteen (15) days of demand by such Lender, 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 Advances and its Commitment.
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 corporate entity controlling such
Lender is increased as a result of a Change (as defined below), then, within
fifteen (15) days of demand by such Lender, Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Advances, its interest in the Facility Letters of Credit,
or its obligation to make Advances hereunder or participate in or issue Facility
Letters of Credit 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 (as defined below) 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
38
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. Without in any way affecting the Borrower's
obligation to pay compensation actually claimed by a Lender under this Section
4.2, the Borrower shall have the right to replace any Lender which has demanded
such compensation provided that Borrower notifies such Lender that it has
elected to replace such Lender and notifies such Lender and the Administrative
Agent of the identity of the proposed replacement Lender not more than six (6)
months after the date of such Lender's most recent demand for compensation under
this Section 4.2. The Lender being replaced shall assign its Percentage of the
Aggregate Commitment and its rights and obligations under this Facility to the
replacement Lender in accordance with the requirements of Section 13.3 hereof
and the replacement Lender shall assume such Percentage of the Aggregate
Commitment and the related obligations under this Facility prior to the Maturity
Date to be extended, all pursuant to an assignment agreement substantially in
the form of Exhibit J hereto. The purchase by the replacement Lender shall be at
par (plus all accrued and unpaid interest and any other sums owed to such Lender
being replaced hereunder) which shall be paid to the Lender being replaced upon
the execution and delivery of the assignment.
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 of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances and require any LIBOR
Advances to be repaid; or 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 by written notice to Borrower 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, and, if
for any reason whatsoever the provisions of Section 4.1 are inapplicable, the
Administrative Agent shall suspend by written notice to Borrower 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 ratable LIBOR Advance
or a Competitive Bid Loan occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable LIBOR Advance or a Competitive Bid Loan is not made on
the date specified by Borrower for any reason other than default by one or more
of the Lenders, Borrower will indemnify each Lender for any loss or cost
incurred by such Lender resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
the ratable LIBOR Advance or Competitive Bid Loan, as the case may be.
4.5. Taxes.
(i) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made
free and clear of and
39
without deduction for any and all Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, (a) the
sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional
sums payable under this Section 4.5) such Lender or the
Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall
pay the full amount deducted to the relevant authority in accordance
with applicable law, and (d) the Borrower shall furnish to the
Administrative Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 4.5) paid by the
Administrative Agent or such Lender as a result of its Commitment,
any Loans made by it hereunder, or otherwise in connection with its
participation in this Agreement and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made
within 30 days of the date the Administrative Agent or such Lender
makes demand therefor pursuant to Section 4.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after
the date of this Agreement, (i) deliver to the Administrative Agent
two duly completed copies of United States Internal Revenue Service
Form W-8BEN or W-8ECI, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, and (ii)
deliver to the Administrative Agent a United States Internal Revenue
Form W-8 or W-9, as the case may be, and certify that it is entitled
to an exemption from United States backup withholding tax. Each
Non-U.S. Lender further undertakes to deliver to each of the
Borrower and the Administrative Agent (x) renewals or additional
copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms
so delivered by it, such additional forms or amendments thereto as
may be reasonably requested by the Borrower or the Administrative
Agent. All forms or amendments described in the preceding sentence
shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation
any change in treaty, law or
40
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 or amendment 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.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty, law
or regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under this
Section 4.5 with respect to Taxes imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject
to Taxes because of its failure to deliver a form required under
clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed
to notify the Administrative Agent of a change in circumstances
which rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the Administrative
Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Administrative Agent under
this subsection, together with all costs and expenses related
thereto (including attorneys fees and time charges of attorneys for
the Administrative Agent, which attorneys may be employees of the
Administrative Agent). The obligations of the Lenders under this
Section 4.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
(viii) Each of the Lenders represents that as of the Agreement
Execution Date it is not aware of any facts that would give rise to
a claim for additional payments under this Section 4.5.
41
4.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Advances to reduce any liability of Borrower to such Lender
under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of a LIBOR
Advance, 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, 4.4 and 4.5 hereof. 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 Borrower in
the absence of manifest error. The amount due in such statement shall not
include amounts due under Section 4.5 that are either attributable to facts
known to the Lender as of the Agreement Execution Date or that relate to a time
period more than ninety (90) days prior to the giving of such written statement.
Determination of amounts payable under such Sections in connection with a LIBOR
Advance shall be calculated as though each Lender funded its LIBOR Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Adjusted LIBOR Rate applicable to
such Advance, 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 Borrower of the written statement. The obligations of Borrower
under Sections 4.1, 4.2, 4.4 and 4.5 hereof shall survive payment of the
Obligations and termination of this Agreement.
4.7. Replacement of Lenders under Certain Circumstances. The Borrower
shall be permitted to replace any Lender which (a) is not capable of receiving
payments without any deduction or withholding of United States federal income
tax pursuant to Section 4.5, or (b) cannot maintain its LIBOR Loans at a
suitable Lending Installation pursuant to Section 4.6, with a replacement bank
or other financial institution; provided that (i) such replacement does not
conflict with any applicable legal or regulatory requirements affecting the
remaining Lenders, (ii) no Event of Default or (after notice thereof to
Borrower) no Default shall have occurred and be continuing at the time of such
replacement, (iii) the Borrower shall repay (or the replacement bank or
institution shall purchase, at par) all Loans and other amounts owing to such
replaced Lender prior to the date of replacement, (iv) the Borrower shall be
liable to such replaced Lender under Sections 4.4 and 4.6 if any LIBOR Loan
owing to such replaced Lender shall be prepaid (or purchased) other than on the
last day of the Interest Period relating thereto, (v) the replacement bank or
institution, if not already a Lender, and the terms and conditions of such
replacement, shall be reasonably satisfactory to the Administrative Agent, (vi)
the replaced Lender shall be obligated to make such replacement in accordance
with the provisions of Section 13.3 (provided that the Borrower shall be
obligated to pay the processing fee referred to therein), (vii) until such time
as such replacement shall be consummated, the Borrower shall continue to pay all
amounts payable hereunder without setoff, deduction, counterclaim or withholding
and (viii) any such replacement shall not be deemed to be a waiver of any rights
which the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
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Article V.
CONDITIONS PRECEDENT
5.1. Conditions Precedent to Closing. The Lenders shall not be required
to make the initial Advance hereunder, nor shall the Issuing Bank be required to
issue the initial Facility Letter of Credit hereunder, unless (i) the Borrower
shall have paid all fees then due and payable to the Lenders, Banc One Capital
Markets, Inc. and the Administrative Agent hereunder, (ii) all of the conditions
set forth in Section 5.2 are satisfied, and (iii) 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:
(a) Certificates of Limited Partnership/Incorporation. A copy of
the Certificate of Limited Partnership for the Borrower and a copy of the
articles of incorporation of General Partner, each certified by the
appropriate Secretary of State or equivalent state official.
(b) Agreements of Limited Partnership/Bylaws. A copy of the
Agreement of Limited Partnership for the Borrower and a copy of the bylaws
of the General Partner, including all amendments thereto, each certified
by the Secretary or an Assistant Secretary of the General Partner as being
in full force and effect on the Agreement Execution Date.
(c) Good Standing Certificates. A certified copy of a certificate
from the Secretary of State or equivalent state official of the states
where the Borrower and General Partner are organized, dated as of the most
recent practicable date, showing the good standing or partnership
qualification (if issued) of (i) Borrower, and (ii) General Partner.
(d) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of
the state where the Borrower and General Partner maintain their principal
place of business, dated as of the most recent practicable date, showing
the qualification to transact business in such state as a foreign limited
partnership or foreign corporation, as the case may be, for (i) Borrower,
and (ii) General Partner.
(e) Resolutions. A copy of a resolution or resolutions adopted by
the Board of Directors of the General Partner, certified by the Secretary
or an Assistant Secretary of the General Partner as being in full force
and effect on the Agreement Execution Date, authorizing the Advances
provided for herein and the execution, delivery and performance of the
Loan Documents by the General Partner to be executed and delivered by it
hereunder on behalf of itself and Borrower.
(f) Incumbency Certificate. A certificate, signed by the Secretary
or an Assistant Secretary of the General Partner and dated the Agreement
Execution Date, as to the incumbency, and containing the specimen
signature or signatures, of the Persons authorized to execute and deliver
the Loan Documents to be executed and delivered by it and Borrower
hereunder.
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(g) Loan Documents. Originals of the Loan Documents (in such
quantities as the Lenders may reasonably request), duly executed by
authorized officers of the appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion, dated the
Agreement Execution Date, from outside counsel for the Borrower which
counsel is reasonably satisfactory to Administrative Agent, substantially
in the form attached hereto as Exhibit E.
(i) Opinion of General Partner's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the General Partner
which counsel is reasonably satisfactory to Administrative Agent,
substantially in the form attached hereto as Exhibit F.
(j) Insurance. Original or certified copies of insurance policies
or binders therefor, with accompanying receipts showing current payment of
all premiums, evidencing that Borrower carries insurance on the
Unencumbered Assets which satisfies the Administrative Agent's insurance
requirements, including, without limitation:
(i) Property and casualty insurance (including coverage for
flood and other water damage for any Unencumbered Assets located
within a 100-year flood plain) in the amount of the replacement cost
of the improvements at the Unencumbered Assets;
(ii) Loss of rental income insurance in the amount not less
than one year's Gross Revenues from the Unencumbered Assets; and
(iii) Comprehensive general liability insurance in the amount
of $1,000,000 per occurrence.
All insurance must be carried by companies with a Best Insurance Reports
(1992) Policyholder's and Financial Size Rating of "A-VII" or better.
(k) Prior Facility. The Lenders acknowledge that the Borrower has
properly terminated the Existing Credit Agreement effective as of the
Agreement Execution Date and shall immediately pay all outstanding
obligations thereunder with the proceeds of the initial Advance hereunder.
The Borrower has received letters from those Lenders under the Existing
Credit Agreement that are not parties to this Agreement confirming their
withdrawal from the Facility.
(l) Financial and Related Information. The following information:
(i) A certificate, signed by an officer of the Borrower,
stating that on the Agreement Execution Date no Default or Event of
Default has occurred and is continuing and that all representations
and warranties of the Borrower contained herein are true and correct
as of the Agreement Execution Date as and to the extent set forth
herein;
44
(ii) The most recent financial statements of the Borrower and
General Partner and a certificate from a Qualified Officer of the
Borrower that no change in the Borrower's financial condition that
would have a Material Adverse Effect has occurred since March 31,
2004;
(iii) Evidence of sufficient Unencumbered Assets (which
evidence may include pay-off letters (together with evidence of
payment or a direction of Borrower to use a portion of the proceeds
of the Advances to repay such Indebtedness), mortgage releases
and/or title policies) to assist the Administrative Agent in
determining the Borrower's compliance with the covenants set forth
in Article IX herein;
(iv) Written money transfer instructions, in substantially
the form of Exhibit G hereto, addressed to the Administrative Agent
and signed by a Qualified Officer, together with such other related
money transfer authorizations as the Administrative Agent may have
reasonably requested; and
(v) Operating statements for the Unencumbered Assets and
other evidence of income and expenses to assist the Administrative
Agent in determining Borrower's compliance with the covenants set
forth in Article IX herein.
(m) Change in Markets. The Administrative Agent shall have
determined that (i) since April 29, 2004, there is an absence of any
material adverse change or disruption in primary or secondary loan
syndication markets, financial markets or in capital markets generally
that would likely impair syndication of the Loans hereunder and (ii) the
Borrower has fully cooperated with the Administrative Agent's syndication
efforts including, without limitation, by providing the Administrative
Agent with information regarding the Borrower's operations and prospects
and such other information as the Administrative Agreement deems necessary
to successfully syndicate the Loans hereunder.
(n) Other Evidence as any Lender May Require. Such other evidence
as any Lender may reasonably request to establish the consummation of the
transactions contemplated hereby, the taking of all necessary actions in
any proceedings in connection herewith and compliance with the conditions
set forth in this Agreement.
When all such conditions have been fulfilled (or, in the Lenders' sole
discretion, waived by Lenders), the Lenders shall confirm in writing to Borrower
that the initial Advance is then available to Borrower hereunder.
5.2. Conditions Precedent to Subsequent Advances. Advances after the
initial Advance shall be made from time to time as requested by Borrower, and
the obligation of each Lender to make any Advance (including Swingline Loans and
Competitive Bid Loans) and the obligation of the Issuing Bank to issue a
Facility Letter of Credit is subject to the following terms and conditions:
45
(a) prior to each such Advance no Default or Event of Default
shall have occurred and be continuing under this Agreement or any of the
Loan Documents and, if required by Administrative Agent, Borrower shall
deliver a certificate of Borrower to such effect; and
(b) The representations and warranties contained in Article VI and
VII are true and correct as of such borrowing date, Issuance Date, or date
of conversion and/or continuation as and to the extent set forth therein,
except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or
warranty shall be true and correct on and as of such earlier date.
Subject to the last grammatical paragraphs of Article VI and VII hereof,
each Borrowing Notice, Letter of Credit Request, and Conversion/Continuation
Notice shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 5.2(a) and (b) have been satisfied.
Article VI.
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1. Existence. Borrower is a limited partnership duly organized and
existing under the laws of the State of Delaware, with its principal place of
business in the State of Illinois, and is duly qualified as a foreign limited
partnership, properly licensed (if required), in good standing and has all
requisite authority to conduct its business in each jurisdiction in which it
owns Properties and, except where the failure to be so qualified or to obtain
such authority would not have a Material Adverse Effect, in each other
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 it owns Property, and except where the
failure to be so qualified or to obtain such authority would not have a Material
Adverse Effect, in each other jurisdiction in which it conducts business.
6.2. Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by Borrower hereunder
are within the partnership authority of such entity and the corporate powers of
the general partners of such entity, have been duly authorized by all requisite
action, and are not in conflict with the terms of any organizational instruments
of such entity, or any instrument or agreement to which Borrower or General
Partner is a party or by which Borrower, General Partner or any of their
respective assets may be bound or affected.
6.3. Power of Officers. The officers of the General Partner executing the
Loan Documents required to be delivered by such entities hereunder have been
duly elected or appointed and were fully authorized to execute the same at the
time each such agreement, certificate or instrument was executed.
46
6.4. Government and Other Approvals. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance of the Loan
Documents required hereunder.
6.5. Solvency.
(i) Immediately after the Agreement Execution 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 Borrower and its Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrower
and its Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Properties of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the amount
that will be required to pay the probable liability of the Borrower
and its 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
Borrower and its 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 Borrower and its 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) Borrower does not intend to, or to permit any of its
Subsidiaries to 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.
6.6. Compliance With Laws. There is no judgment, decree or order or any
law, rule or regulation of any court or governmental authority binding on
Borrower or any of its Subsidiaries which would be contravened by the execution,
delivery or performance of the Loan Documents required hereunder.
6.7. Enforceability of Agreement. This Agreement is the legal, valid and
binding agreement of the Borrower, and the Notes when executed and delivered
will be the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, and the Loan
Documents required hereunder, when executed and delivered, will be similarly
legal, valid, binding and enforceable except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the rights of creditors generally.
6.8. Title to Property. To the best of Borrower's knowledge after due
inquiry, Borrower or its Subsidiaries has good and marketable title to the
Properties and assets reflected in the financial statements as owned by it or
any such Subsidiary free and clear of Liens except for the Permitted Liens. The
execution, delivery or performance of the Loan Documents required to be
delivered by the Borrower hereunder will not result in the creation of any Lien
on
47
the Properties. No consent to the transactions contemplated hereunder is
required from any ground lessor or mortgagee or beneficiary under a deed of
trust or any other party except as has been delivered to the Lenders.
6.9. Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of
Borrower's knowledge, threatened against or affecting the Borrower or any of the
Properties, the adverse determination of which individually or in the aggregate
would have a Material Adverse Effect on the Borrower and/or would cause a
Material Adverse Financial Change of Borrower or materially impair the
Borrower's ability to perform its obligations hereunder or under any instrument
or agreement required hereunder, except as disclosed on Schedule 6.9 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
6.10. Events of Default. No Default or Event of Default has occurred and
is continuing or would result from the incurring of obligations by the Borrower
under any of the Loan Documents or any other document to which Borrower is a
party.
6.11. Investment Company Act of 1940. Borrower is not and will by such
acts as may be necessary continue not to be, an investment company within the
meaning of the Investment Company Act of 1940.
6.12. Public Utility Holding Company Act. The Borrower is not 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 definitions of the Public Utility Holding Company Act of 1935, as amended.
6.13. Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, in a manner which would cause the Facility to be treated
as a "Purpose Credit."
6.14. No Material Adverse Financial Change. To the best knowledge of
Borrower, there has been no Material Adverse Financial Change in the condition
of Borrower since the date of the financial and/or operating statements most
recently submitted to the Lenders.
6.15. Financial Information. All financial statements furnished to the
Lenders by or at the direction of the Borrower and all other financial
information and data furnished by the Borrower to the Lenders are complete and
correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as of
such date. The Borrower has no contingent obligations, liabilities for taxes or
other outstanding financial obligations which are material in the aggregate,
except as disclosed in such statements, information and data.
6.16. Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents
and the transactions contemplated therein is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lenders
will be, true and accurate (taken as a whole) in all material respects on the
date as of
48
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.
6.17. ERISA. (i) Borrower is not an entity deemed to hold "plan assets"
within the meaning of ERISA or any regulations promulgated thereunder of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan within the meaning of Section 4975 of the Code, and
(ii) the execution of this Agreement and the transactions contemplated hereunder
do not give rise to a prohibited transaction within the meaning of Section 406
of ERISA or Section 4975 of the Code.
6.18. Taxes. All required tax returns have been filed by Borrower with the
appropriate authorities except to the extent that extensions of time to file
have been requested, granted and have not expired or except to the extent such
taxes are being contested in good faith and for which adequate reserves, in
accordance with GAAP, are being maintained.
6.19. Environmental Matters. Except as disclosed in Schedule 6.19, each of
the following representations and warranties is true and correct 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 knowledge of the Borrower, the Properties of
Borrower, its Subsidiaries, and Investment Affiliates do not contain
any Materials of Environmental Concern in amounts or concentrations
which constitute a violation of, or could reasonably give rise to
liability under, Environmental Laws.
(ii) Borrower has not received any written notice alleging
that any or all of the Properties of Borrower and its Subsidiaries
and Investment Affiliates and all operations at the Properties are
not currently in compliance with all applicable Environmental Laws.
Further, Borrower has not received any written notice alleging the
current existence of any contamination at or under such Properties
in amounts or concentrations which constitute a violation of any
Environmental Law, or any violation of any Environmental Law with
respect to such Properties for which Borrower, its Subsidiaries or
Investment Affiliates is or could be liable.
(iii) Neither Borrower nor any of its Subsidiaries or
Investment Affiliates has received any written notice of current
non-compliance, liability or potential liability regarding
Environmental Laws with regard to any of the Properties, nor does it
have knowledge that any such notice will be received or is being
threatened.
(iv) To the knowledge of Borrower during the ownership of the
Properties by any or all of Borrower, its Subsidiaries and
Investment Affiliates, Materials of Environmental Concern have not
been transported or disposed of from the Properties of Borrower and
its Subsidiaries and Investment Affiliates in violation of, or in a
manner or to a location which could reasonably give rise to
liability of Borrower, any Subsidiary, or any Investment Affiliate
under, Environmental Laws, nor during the ownership of the
Properties by any or all of
49
Borrower, its Subsidiaries and Investment Affiliates have any
Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of such Properties in violation
of, or in a manner that could give rise to liability of Borrower,
any Subsidiary or any Investment Affiliate under, any applicable
Environmental Laws.
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of Borrower,
threatened, under any Environmental Law to which Borrower, any of
its Subsidiaries, or any Investment Affiliate, is named as a party
with respect to the Properties of such entity, nor are there any
consent decrees or other decrees, consent orders, administrative
order or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
such Properties for which Borrower, its Subsidiaries, or any
Investment Affiliate is or could be liable.
(vi) To the knowledge of Borrower during the ownership of the
Properties by any or all of Borrower, its Subsidiaries and
Investment Affiliates, there has been no release or threat of
release of Materials of Environmental Concern at or from the
Properties of Borrower and its Subsidiaries and Investment
Affiliates, or arising from or related to the operations of such
entity in connection with the Properties in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
6.20. Insurance. Borrower has obtained the insurance which Borrower is
required to furnish to Lenders under Section 5.1(j) hereof.
6.21. No Brokers. Borrower has dealt with no brokers in connection with
this Facility, and no brokerage fees or commissions are payable by or to any
Person in connection with this Agreement or the Advances. Lenders shall not be
responsible for the payment of any fees or commissions to any broker and
Borrower shall indemnify, defend and hold Lenders harmless from and against any
claims, liabilities, obligations, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) made against or incurred by
Lenders as a result of claims made or actions instituted by any broker or Person
claiming by, through or under Borrower in connection with the Facility.
6.22. No Violation of Usury Laws. No aspect of any of the transactions
contemplated herein violate or will violate any usury laws or laws regarding the
validity of agreements to pay interest in effect on the date hereof.
6.23. Not a Foreign Person. Borrower is not a "foreign person" within the
meaning of Section 1445 or 7701 of the Internal Revenue Code.
6.24. No Trade Name. Except for the name "First Industrial," and except as
otherwise set forth on Schedule 6.24 attached hereto, Borrower does not use any
trade name and has not and does not do business under any name other than their
actual names set forth herein. The principal place of business of Borrower is as
stated in the recitals hereto.
50
6.25. Subsidiaries. Schedule 6.25 hereto contains an accurate list of all
of the presently existing Subsidiaries of Borrower, setting forth 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.
6.26. Unencumbered Assets. Schedule 6.26 hereto contains a complete and
accurate description of Unencumbered Assets as of March 31, 2004 and as
supplemented from time to time including the entity that owns each Unencumbered
Asset. With respect to each Project identified from time to time as an
Unencumbered Asset, Borrower hereby represents and warrants as follows except to
the extent disclosed in writing to the Lenders and approved by the Required
Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Asset is
located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the Flood
Disaster Protection Act of 1973, as amended, or any successor law, or, if
located within any such area, Borrower has obtained and will maintain the
insurance prescribed in Section 5.1(j) hereof.
(b) To the Borrower's knowledge, the Unencumbered Asset and the
present use and occupancy thereof are in material compliance with all
applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, and other
similar laws ("Applicable Laws").
(c) The Unencumbered Asset is served by all utilities required for
the current or contemplated use thereof. All utility service is provided
by public utilities and the Unencumbered Asset has accepted or is equipped
to accept such utility service.
(d) All public roads and streets necessary for service of and
access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are
physically and legally open for use by the public.
(e) The Unencumbered Asset is served by public water and sewer
systems or, if the Unencumbered Asset is not serviced by a public water
and sewer system, such alternate systems are adequate and meet, in all
material respects, all requirements and regulations of, and otherwise
complies in all material respects with, all Applicable Laws with respect
to such alternate systems.
(f) Borrower is not aware of any latent or patent structural or
other significant deficiency of the Unencumbered Asset. The Unencumbered
Asset is free of damage and waste that would materially and adversely
affect the value of the Unencumbered Asset, is in good repair and there is
no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from damage caused by fire or other casualty.
There is no pending or, to the actual knowledge of Borrower threatened
condemnation proceedings affecting the Unencumbered Asset, or any material
part thereof.
(g) To Borrower's knowledge, all liquid and solid waste disposal,
septic and sewer systems located on the Unencumbered Asset are in a good
and safe condition and
51
repair and to Borrower's knowledge, in material compliance with all
Applicable Laws with respect to such systems.
(h) All improvements on the Unencumbered Asset lie within the
boundaries and building restrictions of the legal description of record of
the Unencumbered Asset, no such improvements encroach upon easements
benefiting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset
and no improvements on adjoining properties encroach upon the Unencumbered
Asset or easements benefiting the Unencumbered Asset other than
encroachments that do not materially adversely affect the use or occupancy
of the Unencumbered Asset. All amenities, access routes or other items
that materially benefit the Unencumbered Asset are under direct control of
Borrower, constitute permanent easements that benefit all or part of the
Unencumbered Asset or are public property, and the Unencumbered Asset, by
virtue of such easements or otherwise, is contiguous to a physically open,
dedicated all weather public street, and has the necessary permits for
ingress and egress.
(i) There are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, or other
outstanding charges affecting the Unencumbered Asset except to the extent
such items are being contested in good faith and as to which adequate
reserves have been provided.
A breach of any of the representations and warranties contained in this
Section 6.26 with respect to a Project shall disqualify such Project from being
an Unencumbered Asset for so long as such breach continues (unless otherwise
approved by the Required Lenders) but shall not constitute a Default (unless the
elimination of such Property as an Unencumbered Asset results in a Default under
one of the other provisions of this Agreement).
Borrower agrees that all of its representations and warranties set forth
in Article VI of this Agreement and elsewhere in this Agreement are true on the
Agreement Execution Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders) upon each request for
disbursement of an Advance, provided that the Borrower shall only be obligated
to update any Schedules referred to in this Article VI on a quarterly basis,
along with the quarterly financial statements required under Section 8.2(i),
unless any change otherwise required to be disclosed could reasonably be
expected to have a Material Adverse Effect. Each request for disbursement
hereunder shall constitute a reaffirmation of such representations and
warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
Article VII.
ADDITIONAL REPRESENTATIONS AND WARRANTIES
The General Partner hereby represents and warrants that:
52
7.1. Existence. The General Partner is a corporation duly organized and
existing under the laws of the State of Maryland, with its principal place of
business in the State of Illinois, is duly qualified as a foreign corporation
and properly licensed (if required) and in good standing in each jurisdiction
where the failure to qualify or be licensed (if required) would constitute a
Material Adverse Financial Change with respect to the General Partner or have a
Material Adverse Effect on the business or properties of the General Partner.
7.2. Corporate Powers. The execution, delivery and performance of the
Loan Documents required to be delivered by the General Partner hereunder are
within the corporate powers of the General Partner, have been duly authorized by
all requisite corporate action, and are not in conflict with the terms of any
organizational instruments of the General Partner, or any instrument or
agreement to which the General Partner is a party or by which General Partner or
any of its assets is bound or affected.
7.3. Power of Officers. The officers of the General Partner executing the
Loan Documents required to be delivered by the General Partner hereunder have
been duly elected or appointed and were fully authorized to execute the same at
the time each such agreement, certificate or instrument was executed.
7.4. Government and Other Approvals. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance of the Loan
Documents required hereunder.
7.5. Compliance With Laws. There is no judgment, decree or order or any
law, rule or regulation of any court or governmental authority binding on the
General Partner which would be contravened by the execution, delivery or
performance of the Loan Documents required hereunder.
7.6. Enforceability of Agreement. This Agreement is the legal, valid and
binding agreement of the General Partner, as the general partner of Borrower,
enforceable against the General Partner in accordance with its respective terms,
and the Loan Documents required hereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the rights of creditors generally.
7.7. Liens; Consents. The execution, delivery or performance of the Loan
Documents required to be delivered by the General Partner hereunder will not
result in the creation of any Lien on the Properties other than in favor of the
Lenders. No consent to the transactions hereunder is required from any ground
lessor or mortgagee or beneficiary under a deed of trust or any other party
except as has been delivered to the Lenders.
7.8. Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of General
Partner's knowledge, threatened against or affecting the General Partner or any
of the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the General Partner and/or
would cause a Material Adverse Financial Change with respect to the General
Partner or materially impair the General Partner's ability to perform its
obligations hereunder or under any instrument or
53
agreement required hereunder, except as disclosed on Schedule 7.8 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
7.9. Events of Default. No Default or Event of Default has occurred and
is continuing or would result from the incurring of obligations by the General
Partner under any of the Loan Documents or any other document to which General
Partner is a party.
7.10. Investment Company Act of 1940. The General Partner is not, and will
by such acts as may be necessary continue not to be, an investment company
within the meaning of the Investment Company Act of 1940.
7.11. Public Utility Holding Company Act. The General Partner is not 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 definitions of the Public Utility Holding Company Act of
1935, as amended.
7.12. No Material Adverse Financial Change. There has been no Material
Adverse Financial Change in the condition of the General Partner since the last
date on which the financial and/or operating statements were submitted to the
Lenders.
7.13. Financial Information. All financial statements furnished to the
Lenders by or on behalf of the General Partner and all other financial
information and data furnished by or on behalf of the General Partner to the
Lenders are complete and correct in all material respects as of the date
thereof, and such financial statements have been prepared in accordance with
GAAP and fairly present the consolidated financial condition and results of
operations of the General Partner as of such date. The General Partner has no
contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as disclosed in such
statements, information and data.
7.14. Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the General Partner to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions contemplated therein is, and all other such
factual information hereafter furnished by or on behalf of the General Partner
to the Lenders will be, true and accurate in all material respects (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.
7.15. ERISA. (i) General Partner is not an entity deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan within the meaning of Section 4975 of the Code,
and (ii) the execution of this Agreement and the transactions contemplated
hereunder do not give rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
7.16. Taxes. All required tax returns have been filed by the General
Partner with the appropriate authorities except to the extent that extensions of
time to file have been requested, granted and have not expired or except to the
extent such taxes are being contested in good faith and for which adequate
reserves, in accordance with GAAP, are being maintained.
54
7.17. No Brokers. General Partner has dealt with no brokers in connection
with this Facility, and no brokerage fees or commissions are payable by or to
any Person in connection with this Agreement or the Advances. Lenders shall not
be responsible for the payment of any fees or commissions to any broker and
General Partner shall indemnify, defend and hold Lender harmless from and
against any claims, liabilities, obligations, damages, costs and expenses
(including reasonable attorneys' fees and disbursements) made against or
incurred by Lender as a result of claims made or actions instituted by any
broker or Person claiming by, through or under the General Partner in connection
with the Facility.
7.18. Subsidiaries. Schedule 7.18 hereto contains an accurate list of all
of the presently existing Subsidiaries of General Partner, setting forth their
respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
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.
7.19. Status. General Partner is a corporation listed and in good standing
on the New York Stock Exchange ("NYSE") and is currently qualified as a real
estate investment trust under the Code.
General Partner agrees that all of its representations and warranties set
forth in Article VII of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Required Lenders) upon each request for
disbursement of an Advance, provided that the General Partner shall only be
obligated to update any Schedules referred to in this Article VII on a quarterly
basis, along with the quarterly financial statements required under Section
8.2(i), unless any change otherwise required to be disclosed could reasonably be
expected to have a Material Adverse Effect. Each request for disbursement
hereunder shall constitute a reaffirmation of such representations and
warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
Article VIII.
AFFIRMATIVE COVENANTS
The Borrower (and the General Partner, if expressly included in Sections
contained in this Article) covenant and agree that so long as the Commitment of
any Lender shall remain available and until the full and final payment of all
Obligations incurred under the Loan Documents they will:
8.1. Notices. Promptly give written notice to Administrative Agent (who
will promptly send such notice to Lenders) of:
(a) all litigation or arbitration proceedings affecting the
Borrower, the General Partner or any Subsidiary where the amount claimed
is $5,000,000 or more;
55
(b) any Default or Event of Default, specifying the nature and the
period of existence thereof and what action has been taken or been
proposed to be taken with respect thereto;
(c) all claims filed against any property owned by the Borrower or
the General Partner which, if adversely determined, could have a Material
Adverse Effect on the ability of the Borrower or the General Partner to
meet any of their obligations under the Loan Documents;
(d) the occurrence of any other event which might have a Material
Adverse Effect or cause a Material Adverse Financial Change on or with
respect to the Borrower or the General Partner;
(e) any Reportable Event or any "prohibited transaction" (as such
term is defined in Section 4975 of the Code) in connection with any Plan
or any trust created thereunder, which may, singly or in the aggregate
materially impair the ability of the Borrower or the General Partner to
repay any of its obligations under the Loan Documents, describing the
nature of each such event and the action, if any, the Borrower or the
General Partner, as the case may be, proposes to take with respect
thereto;
(f) any notice from any federal, state, local or foreign authority
regarding any Hazardous Material, asbestos, or other environmental
condition, proceeding, order, claim or violation affecting any of the
Properties.
8.2. Financial Statements, Reports, Etc. The Borrower and the General
Partner each shall maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with GAAP, and shall
furnish to the Lenders:
(i) quarterly financial statements (including a
balance sheet income statement and cash flow statement) and related
reports in form and substance satisfactory to the Lenders not later
than 45 days after the end of each of the first three fiscal
quarters, and not later than ninety (90) days after the end of each
fiscal year, all certified by Borrower's chief financial officer or
chief accounting officer, including a statement of Funds From
Operations for the General Partner, calculation of the financial
covenants described below, a description of Unencumbered Assets, a
listing of capital expenditures (in the level of detail as currently
disclosed in Borrower's "Supplemental Information"), a report
listing and describing all newly acquired Properties, including
their cash flow, cost and secured or unsecured Indebtedness assumed
in connection with such acquisition, if any, summary Property
information for all Properties, 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 to evaluate the quarterly compliance certificate
delivered as provided below;
(ii) copies of all Form 10-Ks, 10-Qs, 8-Ks, and any other
public information filed with the Securities Exchange Commission by
Borrower or the General Partner once a quarter simultaneously with
delivering the compliance
56
certificate described below, along with any other materials
distributed to the shareholders of the General Partner or the
partners of the Borrower from time to time, including a copy of the
General Partner's annual report. To the extent any of such reports
contains information required under the other subsections of this
Section 8.2, the information need not be furnished separately under
the other subsections;
(iii) not later than forty-five (45) days after the end of the
first three fiscal quarters, and not later than ninety (90) days
after the end of the fiscal year, a report certified by the entity's
chief financial officer or chief accounting officer, containing
Property Operating Income from individual properties owned by the
Borrower or a Wholly-Owned Subsidiary and included as Unencumbered
Assets.
(iv) Not later than forty-five (45) days after the end of
each of the first three fiscal quarters, and not later than ninety
(90) days after the end of the fiscal year, a compliance certificate
in substantially the form of Exhibit H hereto signed by the
Borrower's chief financial officer or chief accounting officer
confirming that Borrower is in compliance with all of the covenants
of the Loan Documents, showing the calculations and computations
necessary to determine compliance with the financial covenants
contained in this Agreement (including such schedules and backup
information as may be necessary to demonstrate such compliance) and
stating that to such officer's best knowledge, there is no other
Default or Event of Default exists, or if any Default or Event of
Default exists, stating the nature and status thereof;
(v) As soon as possible and in any event within 10 Business
Days after the Borrower knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the chief financial
officer of Borrower, describing said Reportable Event and within 20
days after such Reportable Event, a statement signed by such chief
financial officer describing the action which Borrower proposes to
take with respect thereto; and (b) within 10 Business Days of
receipt, any notice from the Internal Revenue Service, PBGC or
Department of Labor with respect to a Plan regarding any excise tax,
proposed termination of a Plan, prohibited transaction or fiduciary
violation under ERISA or the Code which could result in any
liability to Borrower or any member of the Controlled Group in
excess of $100,000; and (c) within 10 Business Days of filing, any
Form 5500 filed by Borrower with respect to a Plan, or any member of
the Controlled Group which includes a qualified accountant's
opinion.
(vi) As soon as possible and in any event within 30 days
after receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the release by such entity, or
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 Borrower or
any of its Subsidiaries or Investment Affiliates, which, in either
case, could be reasonably likely to have a Material Adverse Effect;
57
(vii) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and
proxy statements so furnished;
(viii) Promptly upon the distribution thereof to the press or
the public, copies of all press releases;
(ix) As soon as possible, and in any event within 10 days
after the Borrower knows of any fire or other casualty or any
pending or threatened condemnation or eminent domain proceeding with
respect to all or any material portion of any Unencumbered Asset, a
statement signed by the Chief Financial Officer of Borrower,
describing such fire, casualty or condemnation and the action
Borrower intends to take with respect thereto; and
(x) Such other information (including, without limitation,
non-financial information) as the Administrative Agent or any Lender
may from time to time reasonably request.
8.3. Existence and Conduct of Operations. Except as permitted herein,
maintain and preserve its existence and all rights, privileges and franchises
now enjoyed and necessary for the operation of its business, including remaining
in good standing in each jurisdiction in which business is currently operated.
The Borrower and the General Partner shall carry on and conduct their respective
businesses in substantially the same manner and in substantially the same fields
of enterprise as presently conducted. The Borrower will do, and will cause each
of its 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, limited liability company or
limited partnership, as the case may be, in its jurisdiction of
incorporation/formation. The Borrower will maintain all requisite authority to
conduct its business in each jurisdiction in which the Properties are located
and, except where the failure to be so qualified would not have a Material
Adverse Effect, in each jurisdiction required to carry on and conduct its
businesses in substantially the same manner as it is presently conducted, and,
specifically, neither the Borrower nor its Subsidiaries will undertake any
business other than the acquisition, development, ownership, management,
operation and leasing of industrial properties and ancillary businesses
specifically related thereto, except that the Borrower and its Subsidiaries and
Investment Affiliates may invest in other assets subject to the certain
limitations contained herein with respect to the following specified categories
of assets: (i) Unimproved Land; (ii) other property holdings (excluding cash,
Cash Equivalents, non-industrial Properties and Indebtedness of any Subsidiary
to the Borrower); (iii) stock holdings other than in Subsidiaries; (iv)
mortgages; and (v) joint ventures and partnerships. The total investment in any
one of categories (i), (ii), (iii), (iv) or (v) shall not exceed 10% of Implied
Capitalization Value and the total investment in all the foregoing investment
categories in the aggregate shall be less than or equal to twenty percent (20%)
of Market Value Net Worth. In addition to the foregoing restrictions,
investments in Unimproved Land which is not adjacent to existing improvements
and not under active planning for near term development as evidenced to the
reasonable satisfaction of Administrative Agent shall not exceed in the
aggregate 5% of Implied Capitalization Value, no single industrial property
shall exceed 5% of Implied Capitalization Value and investments in development
properties that are not Preleased Assets Under
58
Development shall not exceed 5% of Implied Capitalization Value. For the
purposes of this Section 8.3, all investments shall be valued in accordance with
GAAP.
8.4. Maintenance of Properties. Maintain, preserve, protect and keep the
Properties in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements, normal wear and tear excepted.
8.5. Insurance. Provide a certificate of insurance from all insurance
carriers who maintain policies with respect to the Properties within thirty (30)
days after the end of each fiscal year, evidencing that the insurance required
to be furnished to Lenders pursuant to Section 5.1(j) hereof is in full force
and effect. Borrower shall timely pay, or cause to be paid, all premiums on all
insurance policies required under this Agreement from time to time. Borrower
shall promptly notify its insurance carrier or agent therefor (with a copy of
such notification being provided simultaneously to Administrative Agent) if
there is any occurrence which, under the terms of any insurance policy then in
effect with respect to the Properties, requires such notification.
8.6. Payment of Obligations. Pay all taxes, assessments, governmental
charges and other obligations when due, except such as may be contested in good
faith or as to which a bona fide dispute may exist, and for which adequate
reserves have been provided in accordance with sound accounting principles used
by Borrower on the date hereof.
8.7. Compliance with Laws. Comply in all material respects with all
applicable laws, rules, regulations, orders and directions of any governmental
authority having jurisdiction over Borrower, General Partner, or any of their
respective businesses.
8.8. Adequate Books. Maintain adequate books, accounts and records in
order to provide financial statements in accordance with GAAP and, if requested
by any Lender, permit employees or representatives of such Lender at any
reasonable time and upon reasonable notice to inspect and audit the properties
of Borrower and of the Consolidated Operating Partnership, and to examine or
audit the inventory, books, accounts and records of each of them and make copies
and memoranda thereof.
8.9. ERISA. Comply in all material respects with all requirements of
ERISA applicable to it with respect to each Plan.
8.10. Maintenance of Status. General Partner shall at all times (i) remain
as a corporation listed and in good standing on the New York Stock Exchange
(NYSE), and (ii) take all steps maintain General Partner's status as a real
estate investment trust in compliance with all applicable provisions of the Code
(unless otherwise consented to by the Required Lenders).
8.11. Use of Proceeds. Use the proceeds of the Facility for the general
business purposes of the Borrower, including without limitation working capital
needs, closing costs, interim funding for property acquisitions and construction
of new industrial properties, and/or payment of other debts and obligations of
Borrower.
8.12. Pre-Acquisition Environmental Investigations. Cause to be prepared
prior to the acquisition of each project that it intends to acquire an
environmental report pursuant to a
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standard scope of work consistent with that used by other institutional buyers
of similar properties.
8.13. Distributions. Provided there is no Monetary Default then existing
and provided there is not an Event of Default relating to a breach of the
financial covenants contained in Section 9.10 below, the General Partner may
make distributions to its shareholders provided that the aggregate amount of
distributions in any period of four consecutive fiscal quarters is not in excess
of 95% of its Funds From Operations for such period. Notwithstanding the
foregoing, unless at the time of distribution there is a Monetary Default, the
General Partner shall be permitted at all times to distribute whatever amount is
necessary to maintain its tax status as a real estate investment trust.
Article IX.
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment shall
remain available and until full and final payment of all obligations incurred
under the Loan Documents, without the prior written consent of either all of the
Lenders pursuant to Section 14.13(a)(vii) or the consent of the Required Lenders
in all other cases, it will not, and the General Partner will not and, in the
case of Sections 9.5 and 9.11, Borrower's Subsidiaries will not:
9.1. Change in Business. Engage in any business activities or operations
other than (i) the ownership and operation of the Properties, or (ii) other
business functions and transactions related to the financing, ownership,
acquisition, development and/or management of bulk warehouse and light
industrial properties, or without obtaining the prior written consent of the
Required Lenders materially change the nature of the use of the Properties.
9.2. Change of Management of Properties. Change the management of the
Properties, except that any Affiliate of Borrower or the General Partner shall
be permitted to manage any of the Properties.
9.3. Change of Borrower Ownership. Allow (i) the General Partner to own
less than fifty-one percent (51%) of the partnership interests in Borrower or
100% of the stock in FIMC, (ii) the Borrower to be controlled by a Person other
than the General Partner, (iii) any pledge of, other encumbrance on, or
conversion to limited partnership interests of, any of the general partnership
interests in the Borrower, or (iv) any pledge, hypothecation, encumbrance,
transfer or other change in the ownership or the partnership interests in the
Mortgage Partnership.
9.4. Use of Proceeds. Apply or permit to be applied any proceeds of any
Advance directly or indirectly, to the funding of any purchase of, or offer for,
any share of capital stock of any publicly held corporation unless the board of
directors of such corporation has consented to such offer prior to any public
announcements relating thereto and the Lenders have consented to such use of the
proceeds of the Facility.
9.5. Transfers of Unencumbered Assets. Transfer or otherwise dispose of
(other than the creation or incurrence of Liens permitted under Section 9.6) an
Unencumbered Asset without the prior written consent of the Required Lenders if
the Value of such Unencumbered Asset,
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together with the Value of any other Unencumbered Assets which have been
transferred or disposed of during the then-current fiscal quarter and the
immediately preceding three (3) full fiscal quarters, would exceed twenty-five
percent (25%) of the sum of the Value of Unencumbered Assets at the beginning of
such period plus the increase therein as a result of all Projects added to
Unencumbered Assets during such period.
9.6. Liens. Create, incur, or suffer to exist (or permit any of its
Subsidiaries to create, incur, or suffer to exist) any Lien in, of or on the
Property of any member of the Consolidated Operating Partnership other than:
(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 which arise by operation of law, such as
carriers', warehousemen's, landlords', materialmen and mechanics'
liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 30 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, zoning
restrictions, easements 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 Borrower or its Subsidiaries;
(v) Liens of any Subsidiary in favor of the Borrower or
General Partner; 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 9.6 shall be deemed to be "Permitted
Liens".
9.7. Regulation U. Use any of the proceeds of the Facility in a manner
which would cause the Facility to be treated as a "Purpose Credit."
9.8. Indebtedness and Cash Flow Covenants. Permit or suffer:
(a) as of the last day of any fiscal quarter, the ratio of (A) the
sum of (1) EBITDA of the Consolidated Operating Partnership plus (2)
interest income (other
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than any interest income from assets being used to support Defeased Debt)
to (B) the sum of (1) Debt Service plus, without duplication, (2) all
payments on account of preferred stock or preferred partnership units of
any member of the Consolidated Operating Partnership for such quarter plus
(3) all ground lease payments due from any member of the Consolidated
Operating Partnership to the extent not deducted as an expense in
calculating EBITDA of the Consolidated Operating Partnership, to be less
than 1.75 to 1.0, based on annualizing the results of such fiscal quarter;
(b) as of any day, Consolidated Total Indebtedness to exceed 55%
of Implied Capitalization Value of the Consolidated Operating Partnership;
(c) as of any day, Indebtedness which does not bear interest at a
fixed rate or is not subject to interest rate protection products
reasonably approved by the Administrative Agent to exceed, in the
aggregate, twenty percent (20%) of the Implied Capitalization Value of the
Consolidated Operating Partnership.
(d) as of any day, the ratio of Value of Unencumbered Assets to
outstanding Consolidated Senior Unsecured Debt to be less than 1.60;
(e) as of the last day of any fiscal quarter, the ratio obtained
by dividing (a) Property Operating Income from Unencumbered Assets
qualifying for inclusion in the calculation of Value of Unencumbered
Assets for such quarter by (b) Debt Service on all Consolidated Senior
Unsecured Debt for such quarter to be less than 1.75 to 1;
(f) as of any day, Consolidated Secured Debt to exceed 35% of
Implied Capitalization Value of the Consolidated Operating Partnership;
(g) as of the last day of any fiscal quarter, Market Value Net
Worth of the Consolidated Operating Partnership to be less than the sum of
(i) $1,500,000,000 plus (ii) seventy-five percent (75%) of the aggregate
proceeds received (net of customary related fees and expenses) in
connection with any equity offering (including any issuance of shares in
the General Partner or units in the Borrower) after March 31, 2004.
To the extent the Consolidated Operating Partnership has Defeased Debt, both the
underlying debt and interest payable thereon and the financial assets used to
defease such debt and interest earned thereon shall be excluded from
calculations of the foregoing financial covenants.
9.9. Mergers and Dispositions. Enter into any merger, consolidation,
reorganization or liquidation or transfer or otherwise dispose of all or a
substantial portion of its properties, except for: such transactions that occur
between wholly-owned Subsidiaries; transactions where Borrower and the General
Partner are the surviving entities and there is no change in business conducted
or loss of an investment grade credit rating, and no Default or Event of Default
under the Loan Documents results from such transaction; or as otherwise approved
in advance by the Lenders. Borrower will notify the Administrative Agent (who
will promptly notify Lenders) of any acquisitions, dispositions, mergers or
asset purchases involving assets valued in excess of 10% of the Consolidated
Operating Partnership's then-current Market Value Net Worth and certify
compliance with covenants after giving effect to such proposed acquisition,
disposition, merger, or asset purchase regardless of whether any consent is
required.
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9.10. Negative Pledge. Borrower agrees that throughout the term of this
Facility, no "negative pledge" on any Project then included in Unencumbered
Assets restricting Borrower's (or wholly-owned Subsidiary's) right to sell or
encumber such Project shall be given to any other lender or creditor or, if such
a "negative pledge" is given, the Project affected shall be immediately excluded
from Unencumbered Assets.
9.11. Maximum Revenue from Single Tenant. Permit the rent revenue
(exclusive of tenant reimbursements) received from a single tenant during any
quarter (as annualized), to exceed 7.5% of the Consolidated Operating
Partnership's total rent revenue (as annualized) as of the last day of such
quarter, except where the Consolidated Operating Partnership's noncompliance
arises from a merger of tenants or other causes outside of the Consolidated
Operating Partnership's control.
9.12. Issuance of Senior Preferred Stock. Issue any Senior Preferred Stock
without the prior written consent of the Required Lenders.
Article X.
DEFAULTS
The occurrence of any one or more of the following events shall constitute
an Event of Default:
10.1. Nonpayment of Principal. The Borrower fails to pay any principal
portion of the Obligations when due, whether on the Maturity Date or otherwise.
10.2. Certain Covenants. The Borrower, General Partner and/or Consolidated
Operating Partnership, as the case may be, is not in compliance with any one or
more of Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10 or 9.11 hereof.
10.3. Nonpayment of Interest and Other Obligations. The Borrower fails to
pay any interest or other portion of the Obligations, other than payments of
principal, and such failure continues for a period of five (5) days after the
date such payment is due.
10.4. Cross Default. Any monetary default occurs (after giving effect to
any applicable cure period) under any other Indebtedness (which includes
liability under Guaranties) of Borrower or the General Partner, singly or in the
aggregate, in excess of Ten Million Dollars ($10,000,000), other than (i)
Indebtedness arising from the purchase of personal property or the provision of
services, the amount of which is being contested by Borrower or (ii)
Indebtedness which is "non-recourse", i.e., which is not recoverable by the
creditor thereof from the general assets of the Borrower, the General Partner or
any of their Affiliates, but is limited to the proceeds of certain real estate,
improvements and related personal property.
10.5. Loan Documents. Any Loan Document is not in full force and effect or
a default has occurred and is continuing thereunder after giving effect to any
cure or grace period in any such document.
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10.6. Representation or Warranty. At any time or times hereafter any
representation or warranty set forth in Articles VI or VII of this Agreement or
in any other Loan Document or in any statement, report or certificate now or
hereafter made by the Borrower or the General Partner to the Lenders or the
Administrative Agent is not true and correct in any material respect.
10.7. Covenants, Agreements and Other Conditions. The Borrower or the
General Partner fails to perform or observe any of the other covenants,
agreements and conditions contained in Articles VIII and IX (except for Sections
8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10 or 9.11 hereof) and elsewhere in
this Agreement or any of the other Loan Documents in accordance with the terms
hereof or thereof, not specifically referred to herein, and such Default
continues unremedied for a period of thirty (30) days after written notice from
Administrative Agent, provided, however, that if such Default is susceptible of
cure but cannot by the use of reasonable efforts be cured within such thirty
(30) day period, such Default shall not constitute an Event of Default under
this Section 10.7 so long as (i) the Borrower or the General Partner, as the
case may be, has commenced a cure within such thirty-day period and (ii)
thereafter, Borrower or General Partner, as the case may be, is proceeding to
cure such default continuously and diligently and in a manner reasonably
satisfactory to Lenders and (iii) such default is cured not later than sixty
(60) days after the expiration of such thirty (30) day period.
10.8. No Longer General Partner. The General Partner shall no longer be
the sole general partner of Borrower.
10.9. Material Adverse Financial Change. The Borrower or General Partner
has suffered a Material Adverse Financial Change or is Insolvent.
10.10. Bankruptcy.
(a) The General Partner, the Borrower or any Subsidiary having
more than $10,000,000 of Equity Value (as defined below) 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 10.10(a), (vi) fail to
contest in good faith any appointment or proceeding described in Section
10.10(b) or (vii) not pay, or admit in writing its inability to pay, its
debts generally as they become due. As used herein, the term "Equity
Value" of a Subsidiary shall mean (1) Property Operating Income of such
Subsidiary's Properties owned as of the Agreement Execution Date
capitalized at a 10.5% rate, plus (2) the purchase price of any of such
Subsidiary's Properties acquired after the Agreement Execution Date less
(3) any Indebtedness of such Subsidiary;
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(b) A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the General Partner, Borrower or any Subsidiary
having more than $10,000,000 of Equity Value or any substantial portion of
any of their Properties, or a proceeding described in Section 10.10(a)(iv)
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 sixty (60) consecutive
days.
10.11. Legal Proceedings Borrower or General Partner is enjoined,
restrained or in any way prevented by any court order or judgment or if a notice
of lien, levy, or assessment is filed of record with respect to all or any part
of the Properties by any governmental department, office or agency, which could
materially adversely affect the performance of the obligations of such parties
hereunder or under the Loan Documents, as the case may be, or if any proceeding
is filed or commenced seeking to enjoin, restrain or in any way prevent the
foregoing parties from conducting all or a substantial part of their respective
business affairs and failure to vacate, stay, dismiss, set aside or remedy the
same within ninety (90) days after the occurrence thereof.
10.12. ERISA. Borrower or General Partner is deemed to hold "plan assets"
within the meaning of ERISA or any regulations promulgated thereunder of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan (within the meaning of Section 4975 of the Code).
10.13. [Intentionally Omitted.]
10.14. Failure to Satisfy Judgments. The General Partner, the Borrower or
any of its 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, unless the liability is insured against and the insurer
has not challenged coverage of such liability.
10.15. Environmental Remediation. Failure to remediate within the time
period required by law or governmental order, (or within a reasonable time in
light of the nature of the problem if no specific time period is so
established), environmental problems in violation of applicable law related to
Properties of Borrower and/or its Subsidiaries where the estimated cost of
remediation is in the aggregate in excess of $20,000,000, in each case after all
administrative hearings and appeals have been concluded.
Article XI.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
11.1. Acceleration. If any Event of Default described in Section 10.10
hereof occurs, the obligation of the Lenders to make Advances and of the Issuing
Bank to issue Facility Letters of Credit hereunder shall automatically terminate
and the Obligations shall immediately become due and payable. If any other Event
of Default described in Article X hereof occurs, such
65
obligation to make Advances and to issue Facility Letters of Credit shall be
terminated and at the election of the Required Lenders, the Obligations may be
declared to be due and payable.
In addition to the foregoing, following the occurrence of an Event of
Default and so long as any Facility Letter of Credit has not been fully drawn
and has not been cancelled or expired by its terms, upon demand by the Required
Lenders the Borrower shall deposit in the Letter of Credit Collateral Account
cash in an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may
become due with respect thereto. The Borrower shall have no control over funds
in the Letter of Credit Collateral Account, which funds shall be invested by the
Administrative Agent from time to time in its discretion in certificates of
deposit of Bank One having a maturity not exceeding thirty (30) days. Such funds
shall be promptly applied by the Administrative Agent to reimburse the Issuing
Bank for drafts drawn from time to time under the Facility Letters of Credit and
to pay any fees or other amounts due with respect thereto. Such funds, if any,
remaining in the Letter of Credit Collateral Account following the payment of
all Obligations in full shall, unless the Administrative Agent is otherwise
directed by a court of competent jurisdiction, be promptly paid over to the
Borrower.
11.2. Preservation of Rights; Amendments. No delay or omission of the
Lenders in exercising 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 an Advance notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Advance
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 Administrative Agent and the number of Lenders
required hereunder 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 Lenders until the Obligations have
been paid in full.
Article XII.
THE ADMINISTRATIVE AGENT
12.1. Appointment. Bank One, NA is hereby appointed by each of the Lenders
as its contractual representative (herein referred to as the "Administrative
Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Administrative Agent agrees to act
as such contractual representative upon the express conditions contained in this
Article XII. Notwithstanding the use of the defined term "Administrative Agent,"
it is expressly understood and agreed that the Administrative Agent shall not
have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Administrative Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within
66
the meaning of the term "secured party" as defined in the Illinois Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and
the other Loan Documents. Each of the Lenders hereby agrees to assert no claim
against the Administrative Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives.
12.2. 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.
12.3. General Immunity. Neither the Administrative Agent (in its capacity
as 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. Subject to the express terms hereof, the
Administrative Agent will, unless otherwise instructed as described in Section
12.5, endeavor to administer the Facility in substantially the same manner as it
administers similar credit facilities held for its own account.
12.4. No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent (in its capacity as 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; (iii) the satisfaction of any
condition specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. 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 Agent (either in its capacity as Administrative Agent or in its individual
capacity).
12.5. 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 or all Lenders, as the case may be, 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 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.
12.6. Employment of Administrative 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 shall not be answerable to
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the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. 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.
12.7. 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 outside counsel selected by the
Administrative Agent.
12.8. Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
accordance with their respective Percentages (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
Loan Documents, if not paid by Borrower, 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 its capacity as
Administrative Agent and not as a Lender) 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 any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Administrative Agent.
12.9. Rights as a Lender. With respect to the Commitment, Advances made by
it and the Note issued to it, the Administrative Agent shall have the same
rights and powers 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, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent, in its individual capacity, 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.
12.10. [Intentionally Omitted.]
12.11. 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 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.
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12.12. Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Borrower,
such resignation 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. The Administrative Agent may be removed at any time
with or without 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. 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. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of the
Borrower or any Lender, appoint any of its Affiliates which is a commercial bank
as a successor Administrative Agent hereunder. If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may 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
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, 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 XII 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.
In the event that there is a successor to the Administrative Agent by merger, or
the Administrative Agent assigns its duties and obligations to an Affiliate
pursuant to this Section 12.12, then the term "Prime Rate" as used in this
Agreement shall mean the prime rate, base rate or other analogous rate of the
new Administrative Agent.
12.13. Notice of Defaults. If a Lender becomes aware of a Default or Event
of Default, such Lender shall notify the Administrative Agent of such fact. Upon
receipt of such notice that a Default or Event of Default has occurred, the
Administrative Agent shall notify each of the Lenders of such fact.
12.14. 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,
but in no event less than five Business Days 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
69
provided that the request for approval states the time by which a response is
needed before approval is deemed given. If the Lender does not so respond, that
Lender shall be deemed to have approved the request. Upon request, the
Administrative Agent shall notify the Lenders which Lenders, if any, failed to
respond to a request for approval.
12.15. Copies of Documents. Administrative Agent shall promptly deliver to
each of the Lenders copies of all notices of default and other formal notices
sent or received and according to Section 15.1 of this Agreement. Administrative
Agent shall deliver to Lenders within 15 Business Days following receipt, copies
of all financial statements, certificates and notices received regarding the
General Partner's ratings except to the extent such items are required to be
furnished directly to the Lenders by Borrower hereunder. Within fifteen Business
Days after a request by a Lender to the Administrative Agent for other documents
furnished to the Administrative Agent by the Borrower, the Administrative Agent
shall provide copies of such documents to such Lender except where this
Agreement obligates Administrative Agent to provide copies in a shorter period
of time.
12.16. 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, such Defaulting 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
Percentage of any Advance and until such time as such Defaulting Lender
subsequently funds its Percentage 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 Percentage (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
Percentages (recalculated for the purposes hereof to exclude the Defaulting
Lender) until all Senior Loans have been paid in full. At that point, the
"Defaulting Lender" shall no longer be deemed a Defaulting Lender. 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 12.16.
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 12.16 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 as
provided above.
12.17. Delegation to Affiliates. The Borrower and the Lenders agree that
the Administrative Agent may delegate any of its duties under this Agreement to
any of its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of
70
the indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles XII and XIV.
12.18. Co-Agents, Managing Agents, Documentation Agent, Syndication Agent,
etc. Neither any of the Lenders identified in this Agreement as a "co-agent" or
"managing agent" nor the Documentation Agent or the Syndication Agent shall have
any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a fiduciary
relationship with any Lender. Each Lender hereby makes the same acknowledgments
with respect to such Lenders as it makes with respect to the Administrative
Agent in Section 12.11.
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 permitted hereby, except
that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents without the prior written consent of each
Lender, (ii) any assignment by any Lender must be made in compliance with
Section 13.3, and (iii) any transfer by Participation must be made in compliance
with Section 13.2. Any attempted assignment or transfer by any party not made in
compliance with this Section 13.1 shall be null and void, unless such attempted
assignment or transfer is treated as a participation in accordance with Section
13.3.3. The parties to this Agreement acknowledge that clause (ii) of this
Section 13.1 relates only to absolute assignments and this Section 13.1 does not
prohibit assignments creating security interests, including, without limitation,
(x) any pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank or (y) in the case
of a Lender which is a Fund, any pledge or assignment of all or any portion of
its rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 13.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 13.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment 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 owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
13.2. Participations.
13.2.1 Permitted Participants; Effect. Any Lender may at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to
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such Lender, any Note held by such Lender, any Commitment of such Lender
or any other interest of such Lender under the Loan Documents. 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 owner of its Loans and the holder of any Note issued to it in
evidence thereof 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 would require
consent of all of the Lenders pursuant to the terms of Section 14.13 or of
any other Loan Document.
13.2.3 Benefit of Certain Provisions. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 14.15(a) 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 14.15(a) 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 14.15(a), 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 14.15(b) as if each Participant were
a Lender. The Borrower further agrees that each Participant shall be
entitled to the benefits of Sections 4.1, 4.2, 4.4 and 4.5 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 13.3, provided that (i) a Participant shall not be
entitled to receive any greater payment under Section 4.1, 4.2, 4.4 or 4.5
than the Lender who sold the participating interest to such Participant
would have received had it retained such interest for its own account,
unless the sale of such interest to such Participant is made with the
prior written consent of the Borrower, and (ii) any Participant not
incorporated under the laws of the United States of America or any State
thereof agrees to comply with the provisions of Section 4.5 to the same
extent as if it were a Lender.
13.3. Assignments.
13.3.1 Permitted Assignments. Any Lender may at any time assign to
one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit J or in such other form as may be
agreed to by the parties thereto. Each such assignment with respect to a
Purchaser which is not a Lender or an Affiliate of a Lender or an Approved
Fund shall either be in an amount equal to the entire applicable
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Commitment and Loans of the assigning Lender or (unless each of the
Borrower and the Administrative Agent otherwise consents) be in an
aggregate amount not less than $5,000,000. The amount of the assignment
shall be based on the Commitment or outstanding Loans (if the Commitment
has been terminated) subject to the assignment, determined as of the date
of such assignment or as of the "Trade Date," if the "Trade Date" is
specified in the assignment.
13.3.2 Consents. The consent of the Borrower shall be required prior
to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund, provided that the consent of
the Borrower shall not be required if a Default has occurred and is
continuing. The consent of the Administrative Agent shall be required
prior to an assignment becoming effective unless the Purchaser is a
Lender, an Affiliate of a Lender or an Approved Fund. Any consent required
under this Section 13.3.2 shall not be unreasonably withheld or delayed.
13.3.3 Effect; Effective Date of Assignment. Upon (i) delivery to
the Administrative Agent of an assignment, together with any consents
required by Sections 13.3.1 and 13.3.2, and (ii) payment of a $3,500 fee
to the Administrative Agent for processing such assignment (unless such
fee is waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The
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 constitutes "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 or on behalf of 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 thereto, and the transferor
Lender shall be released with respect to the Commitment and Loans assigned
to such Purchaser without any further consent or action by the Borrower,
the Lenders or the Administrative Agent. In the case of an assignment
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents which survive
payment of the Obligations and termination of the applicable agreement.
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 13.3 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 13.2. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
13.3.3, the transferor Lender, the Administrative Agent and the Borrower
shall, if the transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes or, as
appropriate, 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 respective
Commitments, as adjusted pursuant to such assignment.
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13.3.4 Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at one of its offices
in Chicago, Illinois a copy of each Assignment and Assumption delivered to
it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
13.4. Dissemination of Information. Borrower authorizes 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 Borrower and General Partner. Each Transferee
shall agree in writing to keep confidential any such information which is not
publicly available.
13.5. Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is not incorporated under the laws of 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 4.5(ii).
Article XIV.
GENERAL PROVISIONS
14.1. Survival of Representations. All representations and warranties
contained in this Agreement shall survive delivery of the Notes and the making
of the Advances herein contemplated.
14.2. 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.
14.3. Taxes. Any recording and other taxes (excluding franchise, income or
similar taxes) or other similar assessments or charges payable or ruled payable
by any governmental authority incurred in connection with the consummation of
the transactions contemplated by this Agreement shall be paid by the Borrower,
together with interest and penalties, if any.
14.4. 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.
14.5. No Third Party Beneficiaries. 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.
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14.6. Expenses; Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all out-of-pocket costs and expenses incurred
by the Administrative Agent and the Arranger (including the reasonable fees,
out-of-pocket expenses and other reasonable expenses of counsel, which counsel
may be employees of Administrative Agent) in connection with the preparation,
execution and delivery of this Agreement, the Notes, the Loan Documents and any
other agreements or documents referred to herein or therein and any amendments
thereto, (b) all out-of-pocket costs and expenses incurred by the Administrative
Agent and the Lenders (including the reasonable fees, out-of-pocket expenses and
other reasonable expenses of counsel to the Administrative Agent and the
Lenders, which counsel may be employees of Administrative Agent or the Lenders)
in connection with the enforcement and protection of the rights of the Lenders
under this Agreement, the Notes, the Loan Documents or any other agreement or
document referred to herein or therein, and (c) all reasonable and customary
costs and expenses of periodic audits by the Administrative Agent's personnel of
the Borrower's books and records provided that prior to an Event of Default,
Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, 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 the Lenders 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 transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds of any
Advance hereunder, except that the foregoing indemnity shall not apply to a
Lender to the extent that any losses, claims, etc. are the result of such
Lender's gross negligence or willful misconduct. The obligations of the Borrower
under this Section shall survive the termination of this Agreement.
14.7. 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 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.
14.8. Nonliability of the Lenders. The relationship between the Borrower
and the Lenders shall be solely that of borrower and lender. The Lenders shall
not have any fiduciary responsibilities to the Borrower. The Lenders undertake
no 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.
14.9. 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.
14.10. Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL
75
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 LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
LENDERS OR ANY AFFILIATE OF THE LENDERS 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.
14.11. Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE
ADMINISTRATIVE AGENT AND THE LENDERS 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.
14.12. 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 the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents. Any assignee or transferee of the Notes 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 the Notes, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Notes or of
any note or notes issued in exchange therefor.
14.13. Entire Agreement; Modification of Agreement. The Loan Documents
embody the entire agreement among the Borrower, General Partner, Administrative
Agent, and Lenders and supersede all prior conversations, agreements,
understandings, commitments and term sheets among any or all of such parties
with respect to the subject matter hereof. Any provisions of this Agreement may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed by the Borrower, and Administrative Agent if the rights or duties of
Administrative Agent are affected thereby, and
(a) each of the Lenders if such amendment or waiver
(i) reduces or forgives any payment of principal or interest
on the Obligations or any fees payable by Borrower to such Lender
hereunder; or
(ii) postpones the date fixed for any payment of principal of
or interest on the Obligations or any fees payable by Borrower to
such Lender hereunder; or
(iii) changes the amount of such Lender's Commitment (other
than pursuant to an assignment permitted under Section 13.3 or a
reduction in the
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Aggregate Commitment pursuant to Section 2.17 hereof) or the unpaid
principal amount of such Lender's Note; or
(iv) extends the Maturity Date; or
(v) releases or limits the liability of the General Partner
under the Loan Documents; or
(vi) changes the definition of Required Lenders or modifies
any requirement for consent by each of the Lenders; or
(vii) modifies or waives any covenant contained in Sections
8.13, 9.3, 9.5, 9.6, 9.8 or 9.10 hereof; or
(b) the Required Lenders, to the extent expressly provided for
herein and in the case of all other waivers or amendments if no percentage
of Lenders is specified herein.
14.14. Dealings with the Borrower. The Lenders and their affiliates may
accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with the Borrower or the General Partner or any
of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15. Set-Off.
(a) If an Event of Default shall have occurred, each Lender shall
have the right, at any time and from time to time without notice to the
Borrower, any such notice being hereby expressly waived, to set-off and to
appropriate or apply any and all deposits of money or property or any
other indebtedness at any time held or owing by such Lender to or for the
credit or the account of the Borrower against and on account of all
outstanding Obligations and all Obligations which from time to time may
become due hereunder and all other obligations and liabilities of the
Borrower under this Agreement, irrespective of whether or not such Lender
shall have made any demand hereunder and whether or not said obligations
and liabilities shall have matured.
(b) Each Lender agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal, interest or fees due with respect to
any Note held by it (other than payments received pursuant to Sections
4.1, 4.2, 4.3 and 4.5) which is greater than the proportion received by
any other Lender in respect of the aggregate amount of principal, interest
or fees due with respect to any Note held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders and such other
adjustments shall be made as may be required so that all such payments of
principal, interest or Fees with respect to the Notes held by the Lenders
shall be shared by the Lenders pro rata according to their respective
Commitments.
14.16. 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
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execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
Article XV.
NOTICES
15.1. Giving Notice. 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 telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes). Notice may be given as follows:
To the Borrower:
First Industrial, L.P.
c/o First Industrial Realty Trust, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To General Partner:
First Industrial Realty Trust, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Each of the above with a copy to:
Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To each Lender:
As shown below the Lenders' signatures.
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To the Administrative Agent:
Bank One, NA
1 Bank One Plaza
Mail Code: IL1-0315
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
15.2. Change of Address. Each party may change the address for service of
notice upon it by a notice in writing to the other parties hereto.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
BORROWER: FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY TRUST, INC.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Senior VP, Controller, Treasurer
and Asst. Secretary
GENERAL PARTNER: FIRST INDUSTRIAL REALTY TRUST, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior VP, Controller, Treasurer
and Asst. Secretary
80
LENDERS: BANK ONE, NA, Individually and as Agent
Administrative
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
Address for Notices:
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate
Telephone: 312/▇▇▇-▇▇▇▇
Telecopy: 312/732-5939
81
WACHOVIA BANK, NATIONAL
ASSOCIATION, Individually and as Syndication
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Director
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: 404/▇▇▇-▇▇▇▇
Telecopy: 404/332-4066
82
COMMERZBANK, AG, Individually and as
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
Address for Notices:
Two World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telecopy: 212/266-7565
83
PNC BANK, NATIONAL ASSOCIATION,
Individually and as Documentation
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Vice President
Address for Notices:
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: 412/▇▇▇-▇▇▇▇
Telecopy: 412/762-6500
84
▇▇▇▇▇ FARGO BANK, N.A., Individually and as
Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telecopy: 312/782-0969
85
AMSOUTH BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ Center, 15th Floor
Birmingham, Alabama 35203
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 205/▇▇▇-▇▇▇▇
Telecopy: 205/326-4075
86
SOUTHTRUST BANK
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Title: Group Vice President
Address for Notices:
Mail Code B-024-AS-0022
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: 404/▇▇▇-▇▇▇▇
Telecopy: 404/214-3728
87
PB CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telecopy: 212/756-5613
88
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telecopy: 312/444-7028
89
CHEVY CHASE BANK, F.S.B.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: 240/▇▇▇-▇▇▇▇
Telecopy: 240/497-7714
90
BANK OF MONTREAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telecopy: 312/293-5850
91
COMERICA BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 313/▇▇▇-▇▇▇▇
Telecopy: 313/222-9295
92
FIFTH THIRD BANK (CHICAGO)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
Address for Notices:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: 847/▇▇▇-▇▇▇▇
Telecopy: 847/354-7330
93