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EXHIBIT 10.3
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
▇▇▇▇▇▇▇ PROPERTIES, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP,
AS BORROWER,
AND
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA, NATIONAL ASSOCIATION,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
BANK ONE, NA,
U.S. BANK NATIONAL ASSOCIATION,
UNION BANK OF CALIFORNIA, N.A.,
BANKERS TRUST COMPANY,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
PNC BANK, NATIONAL ASSOCIATION,
THE CHASE MANHATTAN BANK,
AMSOUTH BANK,
TOGETHER WITH THOSE ASSIGNEES
AND DESIGNATED BID LENDERS
BECOMING PARTIES HERETO PURSUANT
TO SECTION 11.12, AS LENDERS
OR DESIGNATED BID LENDERS,
AND
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
AS SOLE LEAD ARRANGER AND ADMINISTRATIVE AGENT
AND
BANK OF AMERICA, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
AND
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
AS DOCUMENTATION AGENT
Dated as of November 14, 2000
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.......................................................... 1
1.1. Certain Defined Terms........................................... 1
1.2. Computation of Time Periods..................................... 28
1.3. Terms........................................................... 28
ARTICLE II LOANS............................................................... 29
2.1. Loan Advances and Repayment..................................... 29
2.2. Authorization to Obtain Loans................................... 39
2.3. Lenders' Accounting............................................. 39
2.4. Interest on the Loans........................................... 40
2.5. Fees............................................................ 46
2.6. Payments........................................................ 47
2.7. Increased Capital............................................... 48
2.8. Notice of Increased Costs....................................... 49
2.9. Option to Replace Lenders....................................... 49
ARTICLE III UNENCUMBERED POOL ................................................. 50
3.1. Designation/Acceptance of Unencumbered Pool Properties.......... 50
3.2. Termination of Designation as Unencumbered Pool Property........ 56
ARTICLE IV CONDITIONS TO LOANS................................................. 57
4.1. Conditions to Initial Disbursement of Loans..................... 57
4.2. Conditions Precedent to All Loans............................... 62
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................... 64
5.1. Representations and Warranties as to Borrower, Etc.............. 64
5.2. Representations and Warranties as to each UPP Subpartnership,
Etc............................................................. 70
5.3. Representations and Warranties as to the REIT................... 72
ARTICLE VI REPORTING COVENANTS................................................. 76
6.1. Financial Statements and Other Financial and Operating
Information..................................................... 76
6.2. Environmental Notices........................................... 82
6.3. Confidentiality................................................. 82
ARTICLE VII AFFIRMATIVE COVENANTS.............................................. 83
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7.1. With Respect to Borrower:....................................... 83
7.2. With Respect to UPP Subpartnerships:............................ 85
7.3. With Respect to the REIT:....................................... 86
ARTICLE VIII NEGATIVE COVENANTS................................................ 87
8.1. With Respect to all Parties:.................................... 88
8.2. Amendment of Constituent Documents.............................. 89
8.3. Disposal of UPP Subpartnership Interests........................ 90
8.4. Margin Regulations.............................................. 90
8.5. Change in Control............................................... 90
8.6. Organization of Borrower, Etc................................... 90
8.7. With Respect to each UPP Subpartnership:........................ 90
8.8. With Respect to the REIT:....................................... 91
8.9. With Respect to Non-Guarantor Subsidiaries...................... 91
ARTICLE IX FINANCIAL COVENANTS................................................. 91
9.1. Minimum Net Worth............................................... 91
9.2. Total Liabilities to Gross Asset Value Ratio.................... 92
9.3. Secured Debt to Gross Asset Value Ratio......................... 92
9.4. EBIDA to Interest Expense Ratio................................. 92
9.5. EBIDA to Fixed Charges.......................................... 92
9.6. Unencumbered NOI to Unsecured Interest Expense Ratio............ 93
9.7. Unencumbered Pool Property Covenants............................ 93
9.8. Distributions................................................... 93
9.9. Permitted Investments........................................... 94
9.10. Construction in Process......................................... 96
9.11. Value of Unconsolidated Affiliates and Non-Wholly Owned
Subsidiaries.................................................... 96
9.12. Calculation..................................................... 96
ARTICLE X EVENTS OF DEFAULT; RIGHTS AND REMEDIES............................... 96
10.1. Events of Default............................................... 96
10.2. Rights and Remedies............................................. 100
10.3. Rescission...................................................... 101
ARTICLE XI AGENCY PROVISIONS................................................... 102
11.1. Appointment..................................................... 102
11.2. Nature of Duties................................................ 102
11.3. Loan Disbursements.............................................. 103
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11.4. Distribution and Apportionment of Payments...................... 106
11.5. Rights, Exculpation, Etc........................................ 108
11.6. Reliance........................................................ 109
11.7. Indemnification................................................. 109
11.8. Administrative Agent Individually............................... 110
11.9. Successor Administrative Agent; Resignation of Administrative
Agent; Removal of Administrative Agent.......................... 110
11.10. Consent and Approvals........................................... 111
11.11. Agency Provisions Relating to Certain Enforcement Actions....... 114
11.12. Assignments and Participations.................................. 114
11.13. Ratable Sharing................................................. 121
11.14. Delivery of Documents........................................... 122
11.15. Notice of Events of Default..................................... 123
ARTICLE XII MISCELLANEOUS...................................................... 123
12.1. Expenses........................................................ 123
12.2. Indemnity....................................................... 124
12.3. Change in Accounting Principles................................. 125
12.4. Amendments and Waivers.......................................... 125
12.5. Independence of Covenants....................................... 127
12.6. Notices and Delivery............................................ 127
12.7. Survival of Warranties, Indemnities and Agreements.............. 127
12.8. Failure or Indulgence Not Waiver; Remedies Cumulative........... 128
12.9. Payments Set Aside.............................................. 128
12.10. Severability.................................................... 128
12.11. Headings........................................................ 129
12.12. Governing Law................................................... 129
12.13. Limitation of Liability......................................... 129
12.14. Successors and Assigns.......................................... 129
12.15. Consent to Jurisdiction and Service of Process; Waiver of
Jury Trial...................................................... 129
12.16. Counterparts; Effectiveness; Inconsistencies.................... 130
12.17. Construction.................................................... 131
12.18. Obligations Unsecured........................................... 131
12.19. Entire Agreement................................................ 131
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A -- Assignment and Assumption
Exhibit B -- Unencumbered Pool Certificate
Exhibit C -- Annual Operating Reports
Exhibit D -- Compliance Certificate
Exhibit E -- Loan Notes
Exhibit F -- Notice of Borrowing
Exhibit G -- Fixed Rate Notice
Exhibit H -- Competitive Bid Request
Exhibit I -- Form of Competitive Bid
Exhibit J -- UPP Eligibility Certification
Exhibit K -- Designation Agreement
Schedule 1 -- Unencumbered Pool Properties
Schedule 2 -- Initial Ground Leases
Schedule 5.1.3A -- Ownership of Borrower and UPP Subpartnerships
Schedule 5.1.3B -- Non-Guarantor Subsidiaries
Schedule 5.1.20 -- Environmental Matters
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED CREDIT AGREEMENT is dated as of
November 14, 2000 (as amended, supplemented or modified from time to time, the
"Agreement") and is among ▇▇▇▇▇▇▇ PROPERTIES, L.P., a California limited
partnership ("Borrower"), each of the Lenders and Designated Bid Lenders, as
hereinafter defined, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION ("▇▇▇▇▇ Fargo"), in
its capacity as sole lead arranger and administrative agent and as a Lender,
BANK OF AMERICA, NATIONAL ASSOCIATION ("Bank of America"), in its capacity as
syndication agent and as a Lender, and COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES ("Commerzbank"), in its capacity as documentation agent and as a
Lender.
RECITALS
A. Borrower, ▇▇▇▇▇ Fargo and Lenders (as defined therein) have
previously entered into that certain Credit Agreement dated as of August 8,
1997, as amended by the Amendment No. 1 to Credit Agreement dated as of December
22, 1997, regarding the provision to Borrower of an unsecured revolving loan
facility and bid loan facility in the current maximum principal amount of
$250,000,000 (the "1997 Credit Agreement").
B. The obligations of Borrower under the 1997 Credit Agreement and the
other Loan Documents (as such term is defined in the 1997 Credit Agreement) have
been guarantied by the Guarantor pursuant to that certain Guaranty of even date
with the 1997 Credit Agreement.
C. The parties hereto desire to completely amend and restate the 1997
Credit Agreement, the Guaranty and the other Loan Documents to increase the
amount of the revolving loan facility, to extend the maturity date thereunder
and to modify certain of the terms and conditions contained therein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings (such meanings to be applicable, except to the
extent otherwise indicated in a definition of a particular term, both to the
singular and the plural forms of the terms defined):
"Absolute Rate" means, in connection with any Absolute Rate Auction,
the rate of interest per annum (expressed in multiples of 1/1000th of one
percent) offered for any Bid Loan to be made pursuant thereto.
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"Absolute Rate Auction" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.1.3.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at an
Absolute Rate.
"Accommodation Obligations", as applied to any Person, means (i) any
Indebtedness of another Person in respect of which that Person is liable,
including, without limitation, any such Indebtedness directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the ordinary
course of business), co-made or discounted or sold with recourse by that Person,
or in respect of which that Person is otherwise directly or indirectly liable,
including in respect of any Partnership in which that Person is a general
partner; or (ii) Contractual Obligations (contingent or otherwise) arising
through any agreement to purchase, repurchase or otherwise acquire such
Indebtedness or any security therefor, or to provide funds for the payment or
discharge thereof (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, or other financial condition, or to make payment other than for value
received.
"Accountants" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, any other "big five"
accounting firm or another firm of certified public accountants of national
standing selected by Borrower and acceptable to Administrative Agent.
"Acquisition Price" means the aggregate purchase price for an asset
including bona fide purchase money financing provided by the seller and all (or
Borrower's Ownership Share of, as applicable) existing Indebtedness pertaining
to such asset.
"Adjusted Percentage Interest" has the meaning given to it in the
definition of "Individual UPP Value."
"Administrative Agent" means ▇▇▇▇▇ Fargo in its capacity as
Administrative Agent for Lenders under this Agreement, and shall include any
successor Administrative Agent appointed pursuant hereto and shall be deemed to
refer to ▇▇▇▇▇ Fargo in its individual capacity as a Lender where the context so
requires.
"Affiliates" as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means (i) the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the Securities
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting Securities or by contract or
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otherwise, or (ii) the ownership of a general partnership interest or managing
member's interest in such Person or of a limited partnership interest (or other
ownership interest) representing ten percent (10%) or more of the outstanding
limited partnership interests or other ownership interests of such Person.
"Aggregate Occupancy Rate" means, with respect to the Unencumbered
Pool Properties at any time, the ratio, as of such date, expressed as a
percentage, of (i) the net rentable square footage of all Unencumbered Pool
Properties occupied by tenants paying rent pursuant to binding leases as to
which no monetary default has occurred and is continuing, to (ii) the aggregate
net rentable square footage of all Unencumbered Pool Properties.
"Annual Operating Report" has the meaning given to such term in
Section 6.1.1.
"Applicable Base Rate Margin" means, as of any date of
determination: (i) 0.00%, if Borrower's senior long-term unsecured debt
obligations are rated at least BBB-by both Rating Agencies (or Baa3 if ▇▇▇▇▇'▇
is a Rating Agency), or (ii) 0.25%, in any other case (including, without
limitation, if Borrower's senior long-term unsecured debt obligations are not
rated by either or both of the Rating Agencies). If one Rating Agency assigns a
lower rating to Borrower's senior long-term unsecured debt obligations than does
the other Rating Agency, the lower of the two ratings shall control for purposes
of determining the Applicable Base Rate Margin.
"Applicable Facility Fee Percentage" means, as of any date of
determination: (i) 0.15%, if Borrower's senior long-term unsecured debt
obligations were rated at least A-by both Rating Agencies (or A3 if ▇▇▇▇▇'▇ is a
Rating Agency)as of the last day of the immediately preceding Fiscal Quarter,
(ii) 0.20%, if Borrower's senior long-term unsecured debt obligations were rated
at least BBB by both Rating Agencies (or Baa2 if ▇▇▇▇▇'▇ is a Rating Agency) as
of the last day of the immediately preceding Fiscal Quarter but the condition
set forth in clause (i) of this definition is not satisfied, (iii) 0.25%, if
Borrower's senior long-term unsecured debt obligations were rated at least BBB-
by both Rating Agencies (or Baa3 if ▇▇▇▇▇'▇ is a Rating Agency) as of the last
day of the immediately preceding Fiscal Quarter but neither the condition set
forth in clause (i) of this definition nor the condition set forth in clause
(ii) of this definition is satisfied, and (iv) 0.30%, in any other case
(including, without limitation, if Borrower's senior long-term unsecured debt
obligations were not rated by either or both of the Rating Agencies as of the
last day of the immediately preceding Fiscal Quarter). If one Rating Agency
assigns a lower rating to Borrower's senior long-term unsecured debt obligations
than does the other Rating Agency, the lower of the two ratings shall control
for purposes of determining the Applicable Facility Fee Percentage.
"Applicable LIBOR Rate Margin" means, as of any date of
determination: (i) 0.55%, if Borrower's senior long-term unsecured debt
obligations are rated at least A-
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by both Rating Agencies (or A3 if ▇▇▇▇▇'▇ is a Rating Agency), (ii) 0.60%, if
Borrower's senior long-term unsecured debt obligations are rated at least BBB+
by both Rating Agencies (or Baa1 if ▇▇▇▇▇'▇ is a Rating Agency) but the
condition set forth in clause (i) of this definition is not satisfied, (iii)
0.70%, if Borrower's senior long-term unsecured debt obligations are rated at
least BBB by both Rating Agencies (or Baa2 if ▇▇▇▇▇'▇ is a Rating Agency) but
neither the condition set forth in clause (i) of this definition nor the
condition set forth in clause (ii) of this definition is satisfied, (iv) 0.95%,
if Borrower's senior long-term unsecured debt obligations are rated at least
BBB- by both Rating Agencies (or Baa3 if ▇▇▇▇▇'▇ is a Rating Agency) but neither
the condition set forth in clause (i) of this definition, nor the condition set
forth in clause (ii) of this definition, nor the condition set forth in clause
(iii) of this definition is satisfied, or (v) 1.50%, in any other case
(including, without limitation, if Borrower's senior long-term unsecured debt
obligations are not rated by either or both of the Rating Agencies). If one
Rating Agency assigns a lower rating to Borrower's senior long-term unsecured
debt obligations than does the other Rating Agency, the lower of the two ratings
shall control for purposes of determining the Applicable LIBOR Rate Margin.
"Approved Market" has the meaning ascribed to such term in Section
3.1.2(a).
"Approved Property Type" has the meaning ascribed to such term in
Section 3.1.2(a).
"Assignment and Assumption" means an Assignment and Assumption,
substantially in the form of Exhibit A (with blanks appropriately filled in),
delivered to Administrative Agent in connection with each assignment of a
Lender's interest under this Agreement pursuant to Section 11.12.
"Base Rate" means, on any day, the higher of (i) the base rate of
interest per annum established from time to time by ▇▇▇▇▇ Fargo at its principal
office in San Francisco, California, and designated as its "prime rate" as in
effect on such day, and (ii) the Federal Funds Rate in effect on such day plus
one-half percent (0.5%) per annum.
"Base Rate Loans" means those Committed Loans bearing interest at a
rate determined with reference to the Base Rate.
"Benefit Plan" means, with respect to any Person, any employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
Multiemployer Plan) in respect of which such Person or an ERISA Affiliate of
such Person is, or within the immediately preceding six (6) years was, an
"employer" as defined in Section 3(5) of ERISA.
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"Bid Loan" means a Loan by a Lender or its Designated Bid Lender
pursuant to the Bid Loan Facility, and may be either an Absolute Rate Bid Loan
or a LIBOR Bid Loan.
"Bid Loan Facility" means the credit facility for the requesting and
making of Bid Loans described in Section 2.1.1(b).
"Bid Loan Interest Period" means, with respect to any Bid Loan, the
period, commencing on the date of such Bid Loan and ending on a date that is
thirty (30), sixty (60) or ninety (90) days later, but not extending beyond the
Termination Date, as specified by Borrower in the relevant Competitive Bid
Request; provided however, that if such Bid Loan Interest Period would otherwise
end on a day which is not a Business Day, such Bid Loan Interest Period shall
end on the next following Business Day.
"Bid Loan Limit" means One Hundred Fifty Million Dollars
($150,000,000).
"Borrower Debt" means (without duplication) all Indebtedness of
Borrower (without offset or reduction in respect of prepaid interest,
restructuring fees or similar items) minus, in the case of Nonrecourse
Indebtedness of an Unconsolidated Affiliate that is otherwise included in
Indebtedness of Borrower, the amount of such Indebtedness in excess of
Borrower's Ownership Share thereof.
"Borrower's Percentage Interest" means, in the case of any UPP
Subpartnership, the aggregate percentage of all outstanding equity interests in
such Person held by Borrower or another Person wholly-owned (directly or
indirectly) by the REIT or by Borrower.
"Borrowing" means a borrowing under the Committed Facility
(including a Swing Line Borrowing) or the Bid Loan Facility of Loans of the same
type (i.e., Committed Loans, Absolute Rate Bid Loans, or LIBOR Bid Loans) made
to Borrower on the same day and (except in the case of Base Rate Loans) having
the same Interest Period.
"Business Day" means (i) with respect to any Borrowing, payment or
rate determination of LIBOR Loans or LIBOR Bid Loans, a day, other than a
Saturday or Sunday, on which Administrative Agent is open for business in San
Francisco and New York, and on which dealings in Dollars are carried on in the
London interbank market, and (ii) for all other purposes any day excluding
Saturday, Sunday and any day which is a legal holiday under the laws of the
State of California, or is a day on which banking institutions located in
California are required or authorized by law or other governmental action to
close.
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"Capital Expenditures" means, for any period, the product of (i)
$0.50 (prorated if the relevant period is shorter or longer than one year) times
(ii) the sum of (A) total net rentable square footage of properties then owned
or leased by Borrower or a Subsidiary of Borrower, plus (B) Borrower's Ownership
Share of net rentable square footage owned or leased by any Unconsolidated
Affiliate.
"Capital Leases", as applied to any Person, means any lease of any
property (whether real, personal or mixed), including ground leases, by that
Person as lessee which, in conformity with GAAP, is or should be accounted for
as a capital lease on the balance sheet of that Person.
"Cash Equivalents" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one (1) year after the date of acquisition thereof;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within ninety (90) days after the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from any two of Standard & Poor's Ratings Services,
▇▇▇▇▇'▇ Investors Service, Duff & ▇▇▇▇▇▇ Credit Rating Co., or Fitch Investors
Service, L.P. (or, if at any time no two of the foregoing shall be rating such
obligations, then from such other nationally recognized rating services as may
be acceptable to Administrative Agent) and not listed for possible down-grade in
Credit Watch published by Standard & Poor's Ratings Services; (iii) commercial
paper, other than commercial paper issued by Borrower or any of its Affiliates,
maturing no more than ninety (90) days after the date of creation thereof and,
at the time of acquisition, having a rating of at least A-1 or P-1 from either
Standard & Poor's Ratings Services or ▇▇▇▇▇'▇ Investors Service (or, if at any
time neither Standard & Poor's Ratings Services nor ▇▇▇▇▇'▇ Investors Service
shall be rating such obligations, then the highest rating from such other
nationally recognized rating services as may be acceptable to Administrative
Agent); and (iv) domestic and Eurodollar certificates of deposit or time
deposits or bankers' acceptances maturing within ninety (90) days after the date
of acquisition thereof, overnight securities repurchase agreements, or reverse
repurchase agreements secured by any of the foregoing types of securities or
debt instruments issued, in each case, by (A) any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia or Canada having combined capital and surplus of not less
than Two Hundred Fifty Million Dollars ($250,000,000) or (B) any Lender.
"Change in Control" means (i) any transaction or series of related
transactions in which any Person or two or more Persons acting in concert
acquire beneficial ownership, directly or indirectly, of securities of the REIT
(or of other securities convertible into securities of the REIT) representing
forty percent (40%) or more of the combined voting power of all securities of
the REIT entitled to vote in the
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election of directors; or (ii) (a) during any period of up to twelve (12)
consecutive months commencing on or after the Closing Date individuals who were
directors of the REIT at the beginning of such period shall cease for any reason
to constitute a majority of the Board of Directors, and (b) the individuals
replacing such directors shall not have been nominated by the Board of Directors
of the REIT.
"Closing Date" means the date on which this Agreement shall become
effective in accordance with Section 12.16.
"Commission" means the Securities and Exchange Commission.
"Committed Facility" means the revolving loan facility, described in
Section 2.1.1(a), in the amount of Four Hundred Million Dollars ($400,000,000).
"Committed Loan" means a Loan made by Lenders pursuant to the
Committed Facility, as well as each Loan, initially made under the Swing Line,
that is deemed converted into a Committed Loan pursuant to Section 11.3.3;
provided that (i) if any such Loan or Loans (or portions thereof) is/are
combined or subdivided pursuant to Section 2.1.2(b) or by automatic conversion
of a LIBOR Loan to a Base Rate Loan, the term "Committed Loan" means such
combination or each such subdivided portion, as the case may be, and (ii) where
the context so requires, the term "Committed Loan" means, with respect to a
particular Lender, the advance made (or required to be made) by such Lender in
the amount of such Lender's Pro Rata Share of a Borrowing under the Committed
Facility. Except where the context otherwise requires, the term "Committed Loan"
also means each Swing Line Borrowing.
"Committed Loan Availability" means, at any time, the Loan
Availability less the aggregate principal amount of all Bid Loans then
outstanding.
"Commitment" means, with respect to any Lender, such Lender's Pro
Rata Share of the Committed Facility, which amount shall not exceed the
principal amount set out under such Lender's name under the heading "Revolving
Loan Commitment" on the signature pages attached to this Agreement or as set
forth on an Assignment and Assumption executed by such Lender, as assignee.
"Competitive Bid" means an offer by a Lender to make a Bid Loan in
response to a Competitive Bid Request.
"Competitive Bid Request" means a notice, in substantially the form
of Exhibit H, requesting that Lenders submit bids for a Bid Loan.
"Compliance Certificate" means a certificate, in the form of Exhibit
D, delivered to Administrative Agent by Borrower pursuant to Section 6.1.4 or
any other provision of this Agreement and covering Borrower's compliance with
the covenant contained in Section 8.5 and the financial covenants contained in
Article IX.
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"Confidential Information" has the meaning ascribed to such term in
Section 6.3.
"Contaminant" means any pollutant (as that term is defined in 42
U.S.C. 9601(33)) or toxic pollutant (as that term is defined in 33 U.S.C.
1362(13)), hazardous substance (as that term is defined in 42 U.S.C. 9601(14)),
hazardous chemical (as that term is defined by 29 CFR Section 1910.1200(c)),
toxic substance, hazardous waste (as that term is defined in 42 U.S.C. 6903(5)),
radioactive material, special waste, petroleum (including crude oil or any
petroleum-derived substance, waste, or breakdown or decomposition product
thereof), any constituent of any such substance or waste, including, but not
limited to, polychlorinated biphenyls and asbestos, or any other substance or
waste deleterious to the environment the release, disposal or remediation of
which is now or at any time becomes subject to regulation under any
Environmental Law.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, lease, contract, undertaking, document or instrument to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject (including, without limitation, any
restrictive covenant affecting such Person or any of its properties).
"Court Order" means any judgment, writ, injunction, decree, rule or
regulation of any court or Governmental Authority binding upon or applicable to
the Person in question.
"Debt Service" means, for any period, Interest Expense for such
period plus scheduled principal amortization (i.e., excluding any balloon
payment due at maturity) for such period on all Borrower Debt.
"December 31, 1999 Financials" has the meaning given to such term in
Section 5.1.7.
"Defaulting Lender" means any Lender or Designated Bid 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 (5)
Business Days after notice from Administrative Agent.
"Designated Bid Lender" means a special purpose corporation,
organized under the laws of the United States or any subdivision thereof, that
is engaged in making, purchasing or otherwise investing in commercial loans in
the ordinary course of its business and that (i) shall have become a party to
this Agreement pursuant to Section 11.12.3, and (ii) is not otherwise a Lender.
References herein to a Lender's Designated Bid Lender or a Designating Lender's
Designated Bid Lender mean the
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Designated Bid Lender party to a Designation Agreement with such Lender or
Designating Lender.
"Designating Lender" means a Lender that has entered into a
Designation Agreement with a Designated Bid Lender pursuant to Section 11.12.3.
"Designation Agreement" means a designation agreement, in
substantially the form of Exhibit K, entered into by a Lender and a Designated
Bid Lender and accepted by the Borrower and the Administrative Agent.
"Documentation Agent" means Commerzbank in its capacity as
documentation agent for Lenders under this Agreement, and shall be deemed to
refer to Commerzbank in its individual capacity as a Lender where the context so
requires.
"DOL" means the United States Department of Labor and any successor
department or agency.
"Dollars" and "$" means the lawful money of the United States of
America.
"EBIDA" means, at any time, for the most recent three (3) month
period, (i) (A) the sum of the amounts for such period of (1) Net Income, (2)
depreciation and amortization expense and other non-cash items deducted on the
Financial Statements in determining such Net Income, (3) Borrower's Ownership
Share of depreciation and amortization expense and other non-cash items deducted
on the financial statements of any Unconsolidated Affiliate in determining the
net income thereof that is included on the Financial Statements in determining
such Net Income, and (4) Interest Expense (but only to the extent Interest
Expense was deducted in determining Net Income), minus (B) the sum for such
period of (1) the net income of any Unconsolidated Affiliate in which Borrower
has an Investment interest that is included in Net Income, except to the extent
of the amount of cash dividends or other cash distributions actually paid to
Borrower by such Person during such period, and (2) the income of any
consolidated Subsidiary of Borrower, to the extent that the declaration or
payment of dividends or other distributions by that Subsidiary of such income is
not at the time permitted by operation of any Contractual Obligation or
Requirement of Law applicable to such Subsidiary; (ii) minus gains (and plus
losses) from extraordinary items or asset sales or write-offs or forgiveness of
Indebtedness.
"Eligible Assignee" means any Person who is (i) a commercial bank,
trust company, savings and loan association, savings bank, insurance company,
investment bank or pension fund organized under the laws of the United States of
America, or any state thereof; or (ii) a commercial bank organized under the
laws of any other country or a political subdivision thereof, provided that (x)
such bank is acting through a branch or agency located in the United States, or
(y) such bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and
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Development or a political subdivision of such country; or (iii) any Lender or
Affiliate of any Lender. Notwithstanding the foregoing, each Person described in
clause (i) or (ii) above must (1) be reasonably acceptable to Administrative
Agent and, subject to Section 11.12.1, Borrower, and (2) have (or its parent
that guaranties its obligations hereunder must have) total assets in excess of
$10,000,000,000 and a rating on its (or its parent's) senior unsecured debt
obligations of at least BBB (or its equivalent) by one of the Rating Agencies or
by Duff & ▇▇▇▇▇▇ Credit Rating Co.
"Environmental Laws" has the meaning set forth in Section 5.1.20.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for (i) any liability under Environmental Laws, or (ii) damages
arising from, or costs incurred by such Governmental Authority in response to, a
Release or threatened Release of a Contaminant into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA Affiliate" of any Person means any (i) corporation which is,
becomes, or is deemed to be a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Internal Revenue Code)
as such Person, (ii) partnership, trade or business (whether or not
incorporated) which is, becomes or is deemed to be under common control (within
the meaning of Section 414(c) of the Internal Revenue Code) with such Person,
(iii) other Person which is, becomes or is deemed to be a member of the same
"affiliated service group" (as defined in Section 414(m) of the Internal Revenue
Code) as such Person, or (iv) any other organization or arrangement described in
Section 414(o) of the Internal Revenue Code which is, becomes or is deemed to be
required to be aggregated pursuant to regulations issued under Section 414(o) of
the Internal Revenue Code with such Person pursuant to Section 414(o) of the
Internal Revenue Code.
"Executive Officer" means each of ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Event of Default" means any of the occurrences set forth in Article
X after the expiration of any applicable grace period expressly provided
therein.
"Extension Option" is defined in Section 2.1.6.
"Extended Termination Date" means the date which is the fourth
anniversary of the Closing Date.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
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"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next 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 for such day on such
transactions received by Administrative Agent from three Federal Funds brokers
of recognized standing selected by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any governmental authority succeeding to its functions.
"Financial Statements" has the meaning given to such term in Section
6.1.2.
"Fiscal Quarter" means each three-month period ending on March 31,
June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower which shall be the
twelve (12) month period ending on the last day of December in each year.
"Fixed Charges" means the sum of Debt Service, Capital Expenditures
and preferred dividends (mandatory or cumulative) paid or payable to the REIT's
stockholders.
"Fixed Rate Notice" means, with respect to a LIBOR Loan pursuant to
Section 2.1.2, a notice substantially in the form of Exhibit G.
"Fixed Rate Price Adjustment" has the meaning given to such term in
Section 2.4.8(c).
"Funding Date" means, with respect to any Loan made on or after the
Closing Date, the date of the funding of such Loan.
"Funds from Operations" means, for any period, Net Income plus the
sum of depreciation and amortization of real estate assets (including leasing
commissions, tenant allowances or improvements and other similar items) and
certain other non-cash items deducted on the Financial Statements in determining
such Net Income, minus gains (or plus losses) on sales of real estate,
Investments (excluding Cash Equivalents) or other assets, or other extraordinary
items.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as
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may be in general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
federal, state, local, municipal or other political subdivision thereof or any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Gross Asset Value" means, at any date of determination, the sum
(without duplication of any item) of (i) cash and Cash Equivalents owned by
Borrower or any Subsidiary of Borrower as of such date (but excluding any tenant
deposits and other cash and Cash Equivalents the disposition of which is
restricted in any way), (ii) an amount equal to (A) (1) EBIDA for the most
recently ended Fiscal Quarter (as reasonably adjusted by Borrower, with
Administrative Agent's approval, to take into account any acquisitions or
dispositions of Properties by Borrower during such Fiscal Quarter), less (2)
that portion of Net Income for such Fiscal Quarter attributable to cash or Cash
Equivalents, times (B) four (4), divided by (C) 0.0925(or 0.10 in the case of
the Ground Leases and any additional ground leased properties properly
designated as Unencumbered Pool Properties); provided that, with respect to any
Property owned by a Subsidiary in which Borrower owns less than one hundred
percent (100%) of the outstanding equity interests, there shall be included, for
purposes of the foregoing calculation, only that portion of the EBIDA
attributable to such Property for such period that corresponds to Borrower's
percentage interest in the equity of such Subsidiary (determined in a manner
consistent with the manner in which Borrower's "Adjusted Percentage Interest" is
determined with respect to UPP Subpartnerships), (iii) the aggregate costs of
construction in process at book value and the book value of land (provided that
if the land is not entitled, with "entitled" to mean zoned for the intended
development and use thereof by Borrower, with such development and use
conditioned only upon the issuance of customary building and similar permits,
the value of such land hereunder shall be limited to fifty percent (50%) of its
book value), (iv) the contractual purchase price of any Property subject to a
purchase or repurchase obligation, but only to the extent such purchase
obligations are included in Total Liabilities, and (v) with respect to each
Unconsolidated Affiliate, Borrower's Ownership Share of each of the items
referred to in the foregoing clauses (i) through (iv), as appropriately applied
to such Unconsolidated Affiliate.
"Ground Leases" means those ground leases listed on Schedule 2
attached hereto as of the Closing Date.
"Guarantor" or "Guarantors" means, jointly and severally, the REIT,
each Guarantor Subpartnership and, to the extent necessary to maintain
compliance with Section 8.9, current or future Subsidiaries of Borrower or the
REIT.
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"Guarantor Subpartnership" means any Partnership between (i)
Borrower and SWIP or (ii) (A) Borrower or such other Person or Persons, in each
case, wholly-owned by the REIT, by Borrower, by the REIT and Borrower, or by
Borrower and one or more other Guarantor Subpartnerships, as the Majority
Lenders may approve (such approval not to be unreasonably withheld), and (B) one
or more Third Party Partners (provided that the Borrower's Percentage Interest
of each Guarantor Subpartnership shall at all times equal at least ninety
percent (90%)), in a form (1) including partnership interest allocations,
substantially identical to one or more of the Guarantor Subpartnerships party to
Guaranties as of the date of this Agreement and approved by Administrative Agent
(such approval not to be unreasonably withheld), or (2) otherwise approved by
the Majority Lenders (such approval not to be unreasonably withheld); in any
such case, which (x) owns one or more Unencumbered Pool Properties, and (y) has
executed and delivered a Guaranty.
"Guaranty" means each guaranty of payment and performance executed
by the REIT or a Guarantor Subpartnership in favor of Administrative Agent,
Lenders and Designated Bid Lenders.
"Indebtedness", as applied to any Person (and without duplication),
means (i) all indebtedness, obligations or other liabilities of such Person for
borrowed money, (ii) all indebtedness, obligations or other liabilities of such
Person evidenced by Securities or other similar instruments, (iii) all
reimbursement obligations and other liabilities of such Person with respect to
letters of credit or banker's acceptances issued for such Person's account, (iv)
all obligations of such Person to pay the deferred purchase price of Property or
services, (v) all obligations in respect of Capital Leases of such Person, (vi)
all Accommodation Obligations of such Person, (vii) all indebtedness,
obligations or other liabilities of such Person or others secured by a Lien on
any asset of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by, or are a personal liability of, such Person
(including, without limitation, the principal amount of any assessment or
similar indebtedness encumbering any property), (viii) forward equity
commitments and other similar unfunded obligations, (ix) such Person's Ownership
Share of all Indebtedness of an Unconsolidated Affiliate, and (x) all
indebtedness, obligations or other liabilities (other than interest expense
liability) in respect of Interest Rate Contracts and foreign currency exchange
agreements. Indebtedness shall not include accrued ordinary operating expenses
payable on a current basis.
"Individual UPP Value" means, with respect to any Unencumbered Pool
Property or proposed Unencumbered Pool Property, an amount equal to (A) the
aggregate Net Operating Income of such property (determined, in the case of a
proposed Unencumbered Pool Property, as if it were an Unencumbered Pool
Property) for the most recently ended Fiscal Quarter, times (B) four (4),
divided by (C) 0.0925 (or 0.10 in the case of the Ground Leases and any
additional ground leased properties properly
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designated as Unencumbered Pool Properties); provided that, with respect to an
Unencumbered Pool Property owned by a UPP Subpartnership in which the Borrower's
Percentage Interest is less than 100%, there shall be included, for purposes of
the foregoing calculation only the Borrower's Percentage Interest in the Net
Operating Income of such Unencumbered Pool Property; provided further that, if
one or more of the Third Party Partners in such UPP Subpartnership are required,
under the terms of the Partnership Agreement of such UPP Subpartnership, to pay
over to Borrower all or any portion of any distributions to which such Third
Party Partners otherwise would be entitled in respect of any sale of such
Unencumbered Pool Property, then, for so long as Borrower's right to the payment
of such distributions is not interrupted, Borrower's Percentage Interest in such
UPP Subpartnership shall, for purposes of this calculation, be deemed to include
the entire percentage of the proceeds of any such sale to which Borrower would
be entitled (as so adjusted, Borrower's "Adjusted Percentage Interest").
"Interest Expense" means, for any period, total interest expense,
whether paid, accrued or capitalized (including the interest component of
Capital Leases but excluding capitalized interest in accordance with GAAP, but
only to the extent such capitalized interest is disbursed by the lender pursuant
to an established interest reserve) in respect of Borrower Debt or as to which
Borrower or the REIT is responsible, in whole or in part, for payment,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit, net costs under Interest Rate
Contracts, and Facility Fees payable to Lenders.
"Interest Period" means (i) any Bid Loan Interest Period, and (ii)
subject to Section 2.4.5(a), relative to any LIBOR Loans comprising part of the
same Borrowing, the period beginning on (and including) the date on which such
LIBOR Loans are made as, or converted into, LIBOR Loans, and ending on (but
excluding) the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, in either case as Borrower may select in its
relevant Notice of Borrowing pursuant to Section 2.1.2; provided, however, that:
(a) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day; and
(b) no Interest Period may end later than the Termination Date.
"Interest Rate Contracts" means, collectively, interest rate swap,
collar, cap or similar agreements providing interest rate protection.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time hereafter, and any successor statute.
"Investment" means, as applied to any Person, any direct or indirect
purchase or other acquisition by that Person of Securities, or of a beneficial
interest in
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Securities, of any other Person, and any direct or indirect loan, advance (other
than deposits with financial institutions available for withdrawal on demand,
prepaid expenses, advances to employees and similar items made or incurred in
the ordinary course of business), or capital contribution by such Person to any
other Person, including all Indebtedness and accounts owed by that other Person
which are not current assets or did not arise from sales of goods or services to
that Person in the ordinary course of business.
"Investment Mortgages" mean mortgages securing indebtedness directly
or indirectly owned by Borrower, including certificates of interest in real
estate mortgage investment conduits.
"IRS" means the Internal Revenue Service and any Person succeeding
to the functions thereof.
"Land" means unimproved real estate, including future phases of a
partially completed project, owned or leased by Borrower for the purpose of
future development of improvements. For purposes of the foregoing definition,
"unimproved" shall mean Land on which the construction of building improvements
has not commenced or has been discontinued for a continuous period longer than
sixty (60) days prior to completion.
"Lender Taxes" has the meaning given to such term in Section 2.4.7.
"Lenders" means each financial institution from time to time which
is or becomes a party to this Agreement as a "Lender," together with its
successors and permitted assigns. At all times that there are no Lenders other
than ▇▇▇▇▇ Fargo, the terms "Lender" and "Lenders" means ▇▇▇▇▇ Fargo in its
individual capacity. With respect to matters requiring the consent or approval
of all Lenders at any given time, all then existing Defaulting Lenders will be
disregarded and excluded, and, for voting purposes only, "all Lenders" shall be
deemed to mean "all Lenders other than Defaulting Lenders". Notwithstanding the
foregoing, if a Defaulting Lender shall dispute Administrative Agent's
determination of the defaulted status of such Lender or Designated Bid Lender,
such Lender or Designated Bid Lender may give written notice to Administrative
Agent and each other Lender setting forth the basis upon which such Lender or
Designated Bid Lender disputes Administrative Agent's determination; under such
circumstances, Lenders and Designated Bid Lenders shall attempt in good faith to
resolve such dispute within the 90-day period following Administrative Agent's
original determination, and during such period the suspension of voting rights
for such Defaulting Lender referred to in the preceding sentence shall not
apply; however, if such dispute is not resolved within such 90-day period, then
such suspension of voting rights shall thereafter apply. The provisions of the
immediately preceding sentence shall not alter or condition any other provision
of this Agreement with respect to a failure on the part of any Lender to fund
its Pro Rata Share of any Committed Loan or of any Lender or Designated Bid
Lender to fund any Bid Loan pursuant to an offer accepted in whole or in
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part as provided herein or otherwise to perform its obligations under the Loan
Documents, including, without limitations, the provisions of Section 11.4.
"Liabilities and Costs" means all claims, judgments, liabilities,
obligations, responsibilities, losses, damages (including lost profits),
punitive or treble damages, costs, disbursements and expenses (including,
without limitation, reasonable attorneys', experts' and consulting fees and
costs of investigation and feasibility studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"LIBOR" means, relative to any Interest Period for any LIBOR Loan or
LIBOR Bid Loan included in any Borrowing, the per annum rate of interest
(reserve adjusted as hereinbelow provided and rounded upwards, if necessary, to
the nearest one-sixteenth of one percent (0.0625%)) quoted by Administrative
Agent as the rate at which Dollar deposits in immediately available funds are
available in the Eurodollar interbank market at approximately 9:00 a.m. (San
Francisco time) two (2) Business Days prior to the beginning of such Interest
Period, for delivery on the first day of such Interest Period for a period
approximately equal to such Interest Period and in an amount equal or comparable
to the LIBOR Loan or LIBOR Bid Loan to which such Interest Period relates. The
foregoing rate of interest shall be reserve adjusted by dividing LIBOR by one
(1.00) minus the LIBOR Reserve Percentage, with such quotient to be rounded
upward to the nearest whole multiple of one-hundredth of one percent (0.01%).
All references in this Agreement or other Loan Documents to LIBOR shall mean and
include the aforesaid reserve adjustment.
"LIBOR Auction" means a solicitation of Competitive Bids setting
forth LIBOR Bid Margins pursuant to Section 2.1.3.
"LIBOR Bid Loan" means a Bid Loan that bears interest, for the
relevant Bid Loan Interest Period, at a fixed rate equal to the relevant LIBOR
Bid Margin above (or below, as the case may be) LIBOR.
"LIBOR Bid Margin" means, in connection with any LIBOR Auction, a
margin (expressed in multiples of 1/1000th of one percent) above or below LIBOR
offered for any Bid Loan to be made pursuant thereto.
"LIBOR Loan" means a Committed Loan bearing interest, at all times
during an Interest Period applicable to such Committed Loan, at a fixed rate of
interest determined by reference to LIBOR.
"LIBOR Office" means, relative to any Lender or Designated Bid
Lender, the office of such Lender or Designated Bid Lender designated as such on
the counterpart signature pages hereto or such other office of a Lender as
designated from time to time by notice from such Lender or Designated Bid Lender
to Administrative Agent, whether or
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not outside the United States, which shall be making or maintaining (i) in the
case of a Lender, LIBOR Loans and LIBOR Bid Loans of such Lender, or (ii) in the
case of a Designated Bid Lender, LIBOR Bid Loans of such Lender.
"LIBOR Reserve Percentage" means, relative to any Interest Period
for LIBOR Loans or LIBOR Bid Loans made by any Lender or Designated Bid Lender,
the reserve percentage (expressed as a decimal) equal to the actual aggregate
reserve requirements (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transactional adjustments or other
scheduled changes in reserve requirements) announced within Administrative Agent
as the reserve percentage applicable to Administrative Agent as specified under
regulations issued from time to time by the Federal Reserve Board. The LIBOR
Reserve Percentage shall be based on Regulation D of the Federal Reserve Board
or other regulations from time to time in effect concerning reserves for
"Eurocurrency Liabilities" from related institutions as though Administrative
Agent were in a net borrowing position.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, security interest, encumbrance (including, but
not limited to, easements, rights-of-way, zoning restrictions and the like),
lien (statutory or other), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including without
limitation any conditional sale or other title retention agreement, the interest
of a lessor under a Capital Lease, any financing lease having substantially the
same economic effect as any of the foregoing, and the filing of any financing
statement or document having similar effect (other than a financing statement
filed by a "true" lessor pursuant to Section 9408 of the Uniform Commercial
Code) naming the owner of the asset to which such Lien relates as debtor, under
the Uniform Commercial Code or other comparable law of any jurisdiction.
"Liquidity Provider" means, for any Designated Bid Lender and at any
time, on a collective basis, the financial institutions that at such date are
providing liquidity or credit support facilities to or for the account of such
Designated Bid Lender to fund such Designated Bid Lender's obligations hereunder
or to support the securities, if any, issued by such Designated Bid Lender to
fund such obligations.
"Loan Account" has the meaning given to such term in Section 2.3.1.
"Loan Availability" means, at any time, the lesser of (i) an amount
equal to the positive difference, if any, of (A) 57.143% of the Unencumbered
Pool Value, less (B) Unsecured Liabilities other than the outstanding principal
of the Loans; and (ii) the amount of the Committed Facility from time to time.
"Loan Documents" means this Agreement, the Loan Notes, the
Guaranties and all other agreements, instruments and documents (together with
amendments and
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23
supplements thereto and replacements thereof) now or hereafter executed by the
REIT, Borrower or any Guarantor Subpartnership, which evidence or guaranty the
Obligations.
"Loan Notes" means the promissory notes evidencing the Loans,
executed by Borrower in favor of each of the Lenders (in their own capacities
and, if applicable, in their capacities as administrative agents for their
respective Designated Bid Lenders), as they may be amended, supplemented,
replaced or modified from time to time. The initial Loan Notes and any
replacements thereof shall be substantially in the form of Exhibit E.
"Loans" means the loans made pursuant to this Agreement, whether
constituting Committed Loans or Bid Loans.
"Major Agreements" means, at any time, (i) each Major UPP Lease and
(ii) each ground lease affecting an Unencumbered Pool Property.
"Major UPP Lease" means any UPP Lease of fifty percent (50%) or more
of the net rentable square footage of any Unencumbered Pool Property.
"Majority Lenders" means, collectively, (i) until the Termination
Date, Lenders whose Pro Rata Shares, in the aggregate, are at least fifty-one
percent (51%), and (ii) on and after the Termination Date, Lenders whose
outstanding Loans represent at least fifty-one percent (51%) of the aggregate
principal amount of all outstanding Loans, determined as if each Designating
Lender held (in addition to outstanding Committed Loans and Bid Loans made for
its own account) all outstanding Bid Loans made by its Designated Bid Lender;
provided, in each case, that, in determining such percentage at any given time,
all then existing Defaulting Lenders will be disregarded and excluded and the
Pro Rata Shares (or, if applicable, percentage ownership of outstanding Loans)
of Lenders shall be redetermined, for voting purposes only, to exclude the Pro
Rata Shares of (or, if applicable, outstanding Loans owed to) such Defaulting
Lenders, provided further, that the foregoing suspension of voting rights shall
be subject to the same provisions set forth in the definition of "Lenders" in
the case of any dispute as to the defaulted status of a Lender or Designated Bid
Lender.
"Majority Partnership" means any Partnership in which Borrower has
an ownership interest, whose financial results are consolidated under GAAP in
the Financial Statements.
"Material Adverse Effect" means with respect to a Person, a material
adverse effect upon the condition (financial or otherwise), results of
operations, business or properties of such Person and its consolidated
Subsidiaries, considered as a whole. The phrase "has a Material Adverse Effect"
or "will result in a Material Adverse Effect" or words substantially similar
thereto shall in all cases be intended to mean "has resulted, or will or could
reasonably be anticipated to result, in a Material Adverse Effect", and the
phrase "has no (or does not have a) Material Adverse Effect" or "will not result
in a
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24
Material Adverse Effect" or words substantially similar thereto shall in all
cases be intended to mean "does not or will not or could not reasonably be
anticipated to result in a Material Adverse Effect".
"Multiemployer Plan" means, with respect to any Person, an employee
benefit plan defined in Section 4001(a)(3) of ERISA which is, or within the
immediately preceding six (6) years was, contributed to by such Person or an
ERISA Affiliate of such Person.
"Negative Pledge" means, with respect to a particular asset, that it
is not subject to any agreement (other than this Agreement or any other Loan
Document) that prohibits the creation of any Lien thereon as security for
Indebtedness of the Person owning such asset; provided, however, that (i) an
agreement that establishes a maximum ratio of unsecured debt to unencumbered
assets, or of secured debt to total assets, or that otherwise conditions a
Person's ability to encumber its assets upon the maintenance of one or more
specified ratios that limit such Person's ability to encumber its assets but
that do not generally prohibit the encumbrance of its assets, or the encumbrance
of specific assets, or (ii) a provision in an indenture relating to investment
grade bonds which conditions the creation of a Lien upon the creation of a Lien
(on a pari passu, ratable basis) as security for the debt evidenced by such
indenture, shall not constitute a "Negative Pledge" for purposes of the Loan
Documents.
"Net Income" means, for any period, the net earnings (or loss) of
the REIT, after Taxes and minority interests in consolidated Subsidiaries, but
before minority interests in Borrower, calculated for such period on a
consolidated basis in conformity with GAAP.
"Net Offering Proceeds" means (i) all cash proceeds received by the
REIT as a result of the sale of common, preferred or other classes of stock in
the REIT (if and only to the extent reflected in stockholders' equity on the
consolidated balance sheet of the REIT prepared in accordance with GAAP) less
customary costs and discounts of issuance paid by the REIT, all of which
proceeds shall have been concurrently contributed by the REIT to Borrower as
additional capital, plus (ii) all cash and the fair market value of the net
equity of all properties contributed to Borrower by one or more Persons in
exchange for limited partnership interests in Borrower.
"Net Operating Income" means, with respect to an Unencumbered
Property, the net operating income of such Property determined in accordance
with GAAP, except that Net Operating Income shall not include security or other
deposits, late fees, lease termination or other similar charges, delinquent rent
recoveries, unless previously reflected in reserves, or any other items of a
non-recurring nature. Notwithstanding the foregoing, Net Operating Income may
include collected lease termination charges (amortized monthly over the
remaining term of the lease) and delinquent rent recoveries so long as (i) any
such charge or recovery does not relate to a
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date earlier than twelve (12) months prior to the end of the period for which
Net Operating Income is determined and (ii) no such recovery shall be made for
any month during or after which the space to which such charge or recovery
relates has been re-leased to another Person and such Person has an obligation
to pay rent for such month(s).
"Net Worth" means, at any time, the REIT's stockholders' equity, as
shown on its Financial Statements prepared in accordance with GAAP, plus
minority interests in Borrower, plus cumulative net additions to depreciation
and amortization reflected in statements of operation after December 31, 1999,
minus intangible assets.
"Non Pro Rata Loan" means (i) a Committed Loan with respect to which
fewer than all Lenders have funded their respective Pro Rata Shares of such
Committed Loan, and (ii) any Borrowing comprised of Bid Loans with respect to
which any Bid Loan to be made as part of such Borrowing has not been funded in
full, and the failure of the non-funding Lender(s) or Designated Bid Lender(s)
to fund its or their respective Pro Rata Shares of such Committed Loan or its or
their Bid Loan(s), as the case may be, constitutes a breach of this Agreement.
"Nonrecourse Indebtedness" means Indebtedness with respect to which
recourse for payment is contractually limited to specific assets encumbered by a
Lien securing such Indebtedness.
"Notice of Borrowing" means, with respect to a proposed Borrowing
pursuant to Section 2.1.2, a notice substantially in the form of Exhibit F.
"Obligations" means, from time to time, all Indebtedness of Borrower
owing to Administrative Agent, any Lender or Designated Bid Lender or any Person
entitled to indemnification pursuant to Section 12.2, or any of their respective
successors, transferees or assigns, of every type and description, whether or
not evidenced by any note, guaranty or other instrument, arising under or in
connection with this Agreement or any other Loan Document, whether or not for
the payment of money, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable fees and disbursements of expert witnesses and other
consultants, and any other sum now or hereinafter chargeable to Borrower under
or in connection with this Agreement or any other Loan Document.
"Officer's Certificate" means a certificate signed by a specified
officer of a Person certifying as to the matters set forth therein.
"Ownership Share" means, with respect to any Unconsolidated
Affiliate of a Person, the greater of (a) such Person's relevant nominal direct
and indirect ownership interest (expressed as a percentage) in such
Unconsolidated Affiliate, or (b) such Person's
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relevant direct and indirect economic interest (calculated as a percentage) in
such Unconsolidated Affiliate determined in accordance with the applicable
provisions of all organizational and other related documents of such
Unconsolidated Affiliate.
"Partnership" means any general or limited partnership, joint
venture, limited liability company or limited liability partnership.
"Partnership Agreement" means, with respect to any Partnership, on a
collective basis, its partnership agreement, its agreement of limited
partnership agreement and certificate of limited partnership (if any), its
operating or management agreement and articles or certificate of organization,
or other organizational or governance document(s).
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to the functions thereof.
"Permit" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"Permitted UPP Secured Debt" means Indebtedness of a UPP
Subpartnership to Borrower, incurred to replace Indebtedness secured by one or
more Unencumbered Pool Properties at the time such Unencumbered Pool Property is
first acquired by a UPP Subpartnership (excluding any such replaced Indebtedness
incurred in contemplation of such acquisition), that is secured only by the
Unencumbered Pool Property(ies) owned by the debtor UPP Subpartnership, and that
secured such replaced Indebtedness at the time the Permitted UPP Secured Debt
was incurred.
"Permitted Investments" means Investments in (i) Land, Securities,
Third Party Partner Debt, Partnerships, Investment Mortgages, but only to the
extent permitted in Section 9.9, and (ii) Permitted UPP Secured Debt.
"Permitted Liens" means:
(a) Liens (other than Environmental Liens and any Lien imposed
under ERISA) for taxes, assessments or charges of any Governmental
Authority or claims that are not yet due and payable, unless they are
being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established, to the extent required by
GAAP;
(b) Liens (other than any Lien imposed under ERISA) incurred or
deposits made in the ordinary course of business (including without
limitation surety bonds and appeal bonds) in connection with workers'
compensation, unemployment insurance and other types of social security
benefits or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Indebtedness), or statutory
obligations;
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(c) any laws, ordinances, easements, rights of way, restrictions,
exemptions, reservations, conditions, limitations, covenants, options,
leases, imperfections of title or other matters that, in the aggregate,
do not (i) materially interfere with the occupation, use and enjoyment
of the Property or other assets encumbered thereby, by the Person owning
such Property or other assets, in the normal course of its business or
(ii) materially impair the value of the Property subject thereto; and
(d) Liens imposed by laws, such as mechanics, workers' and
materialmen's liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
thirty (30) days past due, unless such obligations are being contested
in good faith by appropriate proceedings and appropriate reserves have
been established, to the extent required by GAAP.
"Person" means any natural person, employee, corporation, limited
partnership, general partnership, joint stock company, limited liability
company, joint venture, association, company, trust, bank, trust company, land
trust, business trust or other organization, whether or not a legal entity, or
any other non-governmental entity, or any Governmental Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of
ERISA (other than a Multiemployer Plan) in respect of which Borrower or an ERISA
Affiliate of the Borrower, as applicable, is an "employer" as defined in Section
3(5) of ERISA.
"Price Adjustment Date" has the meaning given to such term in
Section 2.4.8(c).
"Pro Rata Share" means, with respect to any Lender, a fraction
(expressed as a percentage), the numerator of which shall be the amount of such
Lender's Commitment and the denominator of which shall be the aggregate amount
of all of Lenders' Commitments.
"Proceedings" means, collectively, all actions, suits and
proceedings before, and investigations commenced or threatened by or before, any
court or Governmental Authority with respect to a Person.
"Property" means, as to any Person, all real or personal property
(including, without limitation, buildings, facilities, structures, equipment and
other assets, tangible or intangible) owned by such Person.
"Rating Agency" means each of (i) Standard & Poor's Ratings Services
("S&P"), and (ii) Fitch Investors Service, L.P. ("Fitch") (or, in lieu of S&P or
Fitch, at Borrower's request, ▇▇▇▇▇'▇ Investors Service ("Moody's"), or such
other nationally
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recognized rating agency as Administrative Agent and the Majority Lenders may
agree to).
"Regulations T, U and X" mean such Regulations of the Federal
Reserve Board as in effect from time to time.
"REIT" means ▇▇▇▇▇▇▇ Properties, Inc., a Maryland corporation.
"Release" means the release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment or into or out of any property, including the
movement of Contaminants through or in the air, soil, surface water, groundwater
or property.
"Remedial Action" means any action required by applicable
Environmental Laws to (i) clean up, remove, treat or in any other way address
Contaminants in the indoor or outdoor environment; (ii) prevent the Release or
threat of Release or minimize the further Release of Contaminants so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; or (iii) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
"Reportable Event" means any of the events described in Section
4043(b) of ERISA, other than an event for which the thirty (30) day notice
requirement is waived by regulations.
"Requirements of Law" mean, as to any Person, the charter and
by-laws, Partnership Agreement or other organizational or governing documents of
such Person, and any law, rule or regulation, Permit, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject, including without limitation, the Securities
Act, the Securities Exchange Act, Regulations T, U and X, FIRREA and any
certificate of occupancy, zoning ordinance, building, environmental or land use
requirement or Permit or occupational safety or health law, rule or regulation.
"Requisite Lenders" means, collectively, (i) until the Termination
Date, Lenders whose Pro Rata Shares, in the aggregate, are at least sixty-six
and two-thirds percent (66-2/3%), and (ii) on and after the Termination Date,
Lenders whose outstanding Loans represent at least sixty-six and two-thirds
percent (66-2/3%) of the aggregate principal amount of all outstanding Loans,
determined as if each Designating Lender held (in addition to outstanding
Committed Loans and Bid Loans made for its own account) all outstanding Bid
Loans made by its Designated Bid Lender; provided, in each case, that, in
determining such percentage at any given time, all then existing Defaulting
Lenders will be disregarded and excluded and the Pro Rata Shares (or, if
applicable, percentage ownership of outstanding Loans) of Lenders shall be
redetermined, for voting
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purposes only, to exclude the Pro Rata Shares of (or, if applicable, outstanding
Loans owed to) such Defaulting Lenders, provided further, that the foregoing
suspension of voting rights shall be subject to the same provisions set forth in
the definition of "Lenders" in the case of any dispute as to the defaulted
status of a Lender or Designated Bid Lender.
"SP #177" means ▇▇▇▇▇▇▇ Properties #177, Limited Partnership, a
California limited partnership.
"SWIP" means Spieker Washington Interest Partners, a California
general partnership, of which Borrower and the REIT are 99% and 1% general
partners, respectively.
"Secretary's Certificate" has the meaning given to such term in
Section 4.1.
"Secured Borrower Debt" means all Borrower Debt that is secured by a
Lien on any real property of Borrower or any Unconsolidated Affiliate, as
applicable.
"Securities" means any stock, shares, voting trust certificates,
bonds, debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities", or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include any evidence of the Obligations, provided that
Securities shall not include Cash Equivalents, Investment Mortgages, Third Party
Partner Debt or interests in Partnerships.
"Securities Act" means the Securities Act of 1933, as amended to the
date hereof and from time to time hereafter, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended to the date hereof and from time to time hereafter, and any successor
statute.
"Senior Loans" has the meaning given to such term in Section 11.4.2.
"Solvent" means, as to any Person at the time of determination, that
such Person (i) owns property the value of which (both at fair valuation and at
present fair saleable value) is greater than the amount required to pay all of
such Person's liabilities (including contingent liabilities and debts); (ii) is
able to pay all of its debts as such debts mature; and (iii) has capital
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage.
"Special UPP" means an Unencumbered Pool Property that (i) has been
designated by Borrower pursuant to Section 3.1.2 and (ii) is either (A) of a
type other than an Approved Property Type or (B) located in a market other than
an Approved
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Market, unless Administrative Agent and the Majority Lenders have specifically
consented to the inclusion of such Unencumbered Pool Property in the
Unencumbered Pool as other than a Special UPP.
"Subsidiary" of a Person means any corporation, Partnership, trust
or other non-Partnership entity of which a majority of the stock (or equivalent
ownership or controlling interest) having voting power to elect a majority of
the Board of Directors (if a corporation) or to select the trustee or equivalent
controlling interest, shall, at the time such reference becomes operative, be
directly or indirectly owned or controlled by such Person. Without limiting the
foregoing definition, SWIP, SP #177 and all UPP Subpartnerships and Majority
Partnerships constitute Subsidiaries of Borrower.
"Swing Line" has the meaning given to such term in Section
2.1.1(a)(ii).
"Swing Line Borrowing" means a Borrowing effected under the Swing
Line.
"Swing Line Lender" means Administrative Agent acting in its
capacity as the lender under the Swing Line, and any successor to Administrative
Agent in that capacity.
"Syndication Agent" means Bank of America in its capacity as
syndication agent for Lenders under this Agreement and shall be deemed to refer
to Bank of America in its individual capacity as a Lender where the context so
requires.
"Taxes" means all federal, state, local and foreign income and gross
receipts taxes.
"Termination Date" has the meaning given to such term in Section
2.1.5.
"Termination Event" means (i) any Reportable Event, (ii) the
withdrawal of Borrower or the REIT, or an ERISA Affiliate of either of them,
from a Benefit Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, (iii) the occurrence of an obligation
arising under Section 4041 of ERISA by the Borrower or the REIT, or an ERISA
Affiliate of either of them, to provide affected parties with a written notice
of an intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA, (iv) the institution by the PBGC of proceedings to
terminate any Benefit Plan of the Borrower or the REIT, or any ERISA Affiliate
of either of them, under Section 4042 of ERISA, (v) any event or condition which
constitutes grounds under Section 4042 of ERISA for the appointment of a trustee
to administer such a Benefit Plan, (vi) the partial or complete withdrawal of
Borrower or the REIT, or any ERISA Affiliate of either of them, from a
Multiemployer Plan, or (vii) the adoption of an amendment by any Person or any
ERISA Affiliate to terminate any Benefit Plan.
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"Termination of Designation" has the meaning given to such term in
Section 3.2.
"Third Party Partner" means a Person who, immediately prior to the
acquisition (whether direct or indirect) of a Property by Borrower, held an
interest in such Property or in the Person who owned it.
"Third Party Partner Debt" means Indebtedness of a Third Party
Partner owed to Borrower, Borrower's interest in which was acquired by Borrower
as part of its acquisition of a Property.
"Total Liabilities", as applied to any Person (and without
duplication), means (i) all Indebtedness of such Person, whether or not such
Indebtedness would be included as a liability on the balance sheet of such
Person in accordance with GAAP, (ii) the security deposits of such Person's
tenants, but only to the extent that the total amount of such security deposits
exceeds such Person's cash or Cash Equivalents, (iii) all purchase and
repurchase obligations, plus (iv) all other liabilities of every nature and kind
of such Person that would be included as liabilities on the balance sheet of
such Person in accordance with GAAP. For purposes of the foregoing clause (iii),
the amount of Total Liabilities of a Person at any given time in respect of a
contract to purchase or otherwise acquire unimproved or fully developed real
property shall be equal to (1) the total purchase price payable by such Person
under the contract if, at such time, the seller of such real property would be
entitled to enforce the contract against such Person, or (2) the aggregate
amount of due diligence deposits, ▇▇▇▇▇▇▇ money payments and other similar
payments made by such Person under the contract which, at such time, would be
subject to forfeiture upon termination of the contract; further, the amount of
Total Liabilities of a Person at any given time in respect of a contract
relating to the acquisition of real property which the seller is required to
develop or renovate prior to, and as a condition precedent to, such acquisition
shall equal the maximum amount reasonably estimated to be payable by such Person
under the contract assuming performance by the seller of its obligations under
the contract which amount shall include, without limitation, any amounts payable
after consummation of such acquisition which may based on certain performance
levels or other related criteria.
"Total Liabilities to Gross Asset Value Ratio" has the meaning given
to such term in Section 9.2.
"Unconsolidated Affiliate" shall mean, with respect to any Person,
any other Person in which such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on a consolidated financial statement of
such Person. Unless a Person holding an Investment in another Person has also
assumed liability, or is legally responsible for, any material obligations of
the Person in which it holds an Investment, an "Unconsolidated
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Affiliate" for purposes of this Agreement shall only include Persons whose
principal business is the ownership, operation and development of industrial,
warehouse, office or research and development properties, provided, however,
that any such Investment shall be subject to the limitations contained in
Section 9.9.
"Unencumbered NOI" means, for any period, the aggregate Net
Operating Income of all Unencumbered Properties for such period.
"Unencumbered Pool Certificate" has the meaning given to such term
in Section 6.1.6.
"Unencumbered Pool Properties" means the Unencumbered Properties
listed on Schedule 1, as such Schedule 1 may be amended from time to time
(pursuant to Sections 3.1.2(a), 3.1.2(d) or 3.2) to reflect the addition and
deletion of Unencumbered Pool Properties pursuant to Article III.
"Unencumbered Pool Value" means, at any time, an amount equal to the
sum of (i) cash and Cash Equivalents owned by Borrower or a UPP Subpartnership
(or, if the Borrower's Percentage Interest in such UPP Subpartnership is less
than 100%, an amount equal to the Borrower's Adjusted Percentage Interest
thereof) as of such date (but excluding any tenant deposits), provided that
neither such cash or Cash Equivalents, nor any portion of the Borrower's
Percentage Interest, in the Person owning such property, is subject to (A) any
Lien (other than Permitted Liens), or (B) any Negative Pledge, and (ii) an
amount equal to (A) the aggregate Net Operating Income of the Unencumbered Pool
Properties for the most recently ended Fiscal Quarter, times (B) four (4),
divided by (C) 0.0925 (or 0.10 in the case of the Ground Leases and any
additional ground leased properties properly designated as Unencumbered Pool
Properties); provided that, with respect to Unencumbered Pool Properties owned
by a UPP Subpartnership in which the Borrower's Percentage Interest is less than
100%, there shall be included, for purposes of the foregoing calculation, only
the Borrower's Adjusted Percentage Interest in the Net Operating Income of such
Unencumbered Pool Properties.
"Unencumbered Property" means real property (including ground
leases) improved with one or more completed office or, industrial buildings,
that is wholly-owned by Borrower or a UPP Subpartnership, provided that neither
such real property, nor any interest in the Person owning such Property (other
than interests held by Third Party Partners), is subject to (i) any Lien, other
than Permitted Liens or (ii) unless such Property is owned by a UPP
Subpartnership that is not a Guarantor Subpartnership, any Negative Pledge.
"Unmatured Event of Default" means an event which, with the giving
of notice or the lapse of time, or both, would constitute an Event of Default.
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"Unsecured Interest Expense" means, for any period, (i) total
Interest Expense for such period, less (ii) Interest Expense attributable to any
Secured Borrower Debt for such period.
"Unsecured Liabilities" means, at any time, (i) Total Liabilities of
Borrower and its Subsidiaries, less (ii) Secured Borrower Debt.
"UPP" when used herein refers to an Unencumbered Pool Property.
"UPP Eligibility Certification" means the certification delivered by
Borrower to Administrative Agent with respect to any proposed Unencumbered Pool
Property in accordance with Section 3.1.2.
"UPP Eligibility Criteria" has the meaning given to such term in
Section 3.1.2.
"UPP Lease" means a tenant lease of an Unencumbered Pool Property.
"UPP Subpartnership" means (i) any Guarantor Subpartnership, (ii)
any other Partnership between (A) Borrower and SWIP or (B) (1) Borrower or such
other Person or Persons, in each case, wholly-owned by the REIT, by Borrower, by
the REIT and Borrower, or by Borrower and one or more Guarantor Subpartnerships,
as Administrative Agent and the Majority Lenders may approve (such approval not
to be unreasonably withheld), and (2) one or more Third Party Partners (provided
that the Borrower's Percentage Interest of each UPP Subpartnership shall at all
times equal at least fifty-one percent (51%)); in any such case, which owns one
or more Unencumbered Pool Properties, and (iii) ▇▇▇▇▇▇▇ Northwest Inc., a
California corporation, or any other corporation wholly-owned by Borrower and/or
the REIT and approved by Administrative Agent and the Majority Lenders.
"Voluntary Termination" has the meaning given to such term in
Section 2.1.5.
1.2. Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, unless
otherwise specified, the word "from" means "from and including" and the words
"to" and "until" each mean "to and including". Periods of days referred to in
this Agreement shall be counted in calendar days unless Business Days are
expressly prescribed.
1.3. Terms.
1.3.1 Any accounting terms used in this Agreement which are not
specifically defined shall have the meanings customarily given them in
accordance with GAAP. All references herein to Borrower, the REIT or any other
Person, in connection with any financial or other related covenant, limitation,
representation or calculation (and
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all definitions herein related thereto), shall be understood to mean and refer
to Borrower, the REIT and such other Person (including, without limitation, all
Subsidiaries in each instance) on a consolidated basis in accordance with GAAP,
unless otherwise specifically provided and subject in all events to any
adjustments herein set forth.
1.3.2 Any time the phrase "to the best of Borrower's knowledge" or a
phrase similar thereto is used herein, it means: "to the actual knowledge of the
general counsel of Borrower or the Executive Officers or their respective
successors in office."
1.3.3 In each case where the consent or approval of Administrative
Agent, all Lenders and Designated Bid Lenders, Majority Lenders and/or Requisite
Lenders is required, or their non-obligatory action is requested by Borrower,
such consent, approval or action shall be in the sole and absolute discretion of
Administrative Agent and, as applicable, each Lender and Designated Bid Lender,
unless otherwise specifically indicated.
1.3.4 Any time the word "or" is used herein, unless the context
otherwise clearly requires, it has the inclusive meaning represented by the
phrase "and/or". The words "hereof", "herein", "hereby", "hereunder" and similar
terms refer to this Agreement as a whole and not to any particular provision of
this Agreement. Article, section, subsection, clause, exhibit and schedule
references are to this Agreement unless otherwise specified. Any reference in
this Agreement to this Agreement or to any other Loan Document includes any and
all amendments, modifications, supplements, renewals or restatements thereto or
thereof, as applicable.
ARTICLE II
LOANS
2.1. Loan Advances and Repayment.
2.1.1 Credit Facilities.
(a) Committed Loan Facility.
(i) Subject to the terms and conditions set forth in this
Agreement, Lenders hereby agree to make Committed Loans to
Borrower from time to time during the period from the Closing
Date to the Business Day next preceding the Termination Date, in
an aggregate outstanding principal amount which shall not exceed
at any time the Committed Loan Availability, provided that if any
Swing Line Borrowings are outstanding as of the date of any such
Committed Loan, (A) such Committed Loan shall be in an amount
equal to at least the aggregate outstanding principal of all
outstanding Swing Line Borrowings, and (B) the proceeds thereof
shall be
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applied first to the payment of such outstanding Swing Line
Borrowings. All Committed Loans under this Agreement shall be
made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender
shall be responsible for any failure by any other Lender to
perform its obligation to make a Committed Loan hereunder and
that the Commitment of any Lender shall not be increased or
decreased as a result of the failure by any other Lender to
perform its obligation to make a Committed Loan. Committed Loans
may be voluntarily prepaid pursuant to Section 2.6.1 and, subject
to the provisions of this Agreement, any amounts so prepaid may
be reborrowed under this Section 2.1.1(a). The principal balance
of the Committed Loans shall be payable in full on the
Termination Date. The Committed Loans will be evidenced by the
Loan Notes.
(ii) (A) There is hereby established a subfacility (the
"Swing Line"), in the amount of Thirty-Five Million Dollars
($35,000,000), under and as a part of the Committed Facility. The
Swing Line shall not for any purpose be an addition to the
Commitments or the Committed Facility, but shall be a subfeature
thereunder. All Loans requested to be made pursuant to the Swing
Line shall be subject to the same terms and conditions applicable
to other Borrowings under the Committed Facility, and all
outstanding Swing Line Borrowings shall likewise be subject to
the same terms and conditions applicable to other outstanding
Borrowings under the Committed Facility, except as expressly
provided in (1) the following Section 2.1.1(a)(ii)(B), (2)
Section 2.1.2(a)(ii) with respect to the number of Borrowings
permitted in any calendar month, the time within which the Notice
of Borrowing for Swing Line Borrowings must be given, the minimum
and incremental amounts applicable to Swing Line Borrowings and
the interest rate applicable thereto, (3) Section 2.6.1(a) with
respect to prepayments of Swing Line Borrowings, and Section
11.3.3.
(B) The Swing Line Lender hereby agrees to make advances
to Borrower from time to time during the period from the Closing
Date to the Business Day next preceding the Termination Date, in
an aggregate principal amount not exceeding at any one time the
lesser of (1) (i) the Committed Loan Availability, less (ii) the
outstanding principal of all Committed Loans other than Swing
Line Borrowings, and (2) Thirty-Five Million Dollars
($35,000,000). The Swing Line Lender's obligation to fund Swing
Line Borrowings shall be unaffected by its making of any
Committed Loans or Bid Loans, notwithstanding that the sum of the
Swing Line Borrowings plus the Swing Line Lender's Pro Rata Share
of the aggregate principal amount of the outstanding Committed
Loans other than
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Swing Line Borrowings, may exceed the Swing Line Lender's
Commitment.
(b) Bid Loan Facility.
(i) In addition to its agreement to make Committed Loans
under the Committed Facility, each Lender severally agrees that,
subject to the conditions that at the time of Borrower's
submission of the relevant Competitive Bid Request (A) Borrower's
senior long-term unsecured debt obligations are rated at least
BBB-/Baa3 by both Rating Agencies, and (B) no Event of Default or
Unmatured Event of Default has occurred and is continuing,
Borrower may, in accordance with this Section 2.1.1(b), Section
2.1.3 and the other relevant provisions of the Loan Documents,
from time to time request that Lenders, prior to the Termination
Date, submit offers to make Bid Loans to Borrower; provided,
however that (X) at no time shall the aggregate principal amount
of all Loans (whether Committed Loans or Bid Loans) at any time
outstanding exceed the Loan Availability; (Y) at no time shall
the aggregate principal amount of all Bid Loans exceed the Bid
Loan Limit; and (Z) at no time may the number of Bid Loan
Interest Periods then outstanding plus the number of Interest
Periods for Committed Loans then outstanding exceed eight.
(ii) Lenders may, but shall not be obligated to, submit
offers in response to any Competitive Bid Request, and Borrower
may, but shall not be obligated to, accept any such offers. The
obligation of a Lender to fund its Pro Rata Share of Committed
Loans shall be unaffected by its (or its Designated Bid Lender's)
making of any Bid Loans, notwithstanding that the sum of such
Lender's Pro Rata Share of the aggregate principal amount of the
outstanding Committed Loans, plus the aggregate amount of such
Lender's (and its Designated Bid Lender's) outstanding Bid Loans,
may exceed such Lender's Commitment.
(iii) Any Bid Loan that would otherwise be made by a
Lender that is a Designating Lender may from time to time be made
by its Designated Bid Lender, in such Designated Bid Lender's
sole discretion. Nothing herein shall constitute a commitment to
make Bid Loans by such Designated Bid Lender; provided, however,
if such Designating Lender's Designated Bid Lender elects not to,
or fails to, make any such Bid Loan, for any reason whatsoever,
such Designating Lender shall make such Bid Loan pursuant to the
terms hereof, it being the obligation of each Designating Lender
to make each Bid Loan with respect to a Competitive Bid submitted
by such Designating Lender and accepted by Borrower, in
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whole or in part, pursuant hereto, except to the extent that such
Bid Loan is in fact funded by its Designated Bid Lender.
(iv) On the last day of each Bid Loan Interest Period,
Borrower shall pay to Administrative Agent, for the respective
accounts of Lenders and Designated Bid Lenders making Bid Loans
ending thereon, the full amount of the principal of each Bid Loan
ending thereon. The Bid Loans will be evidenced by the Loan
Notes.
(c) Excess Borrowing Condition. If at any time (x) the
outstanding principal balance of the Loans exceeds the Loan
Availability, as a result of a reduction in the Unencumbered Pool Value,
the incurrence of additional Unsecured Liabilities or for any other
reason whatsoever, and (y) the aggregate principal amount of all then
outstanding Bid Loans having Bid Loan Interest Periods that end within
sixty (60) days following such occurrence is less than the amount by
which the outstanding principal balance of the Loans exceeds the Loan
Availability, then Borrower shall, not later than sixty (60) days
following the date on which the Loan Availability was exceeded, (i)
reduce the Unsecured Liabilities in such amounts and/or (ii) identify to
Administrative Agent such additional Unencumbered Pool Property(ies) as
(A) Administrative Agent may approve and Majority Lenders may accept
under Section 3.1.3, or (B) as may be designated as Unencumbered Pool
Property(ies) in accordance with Section 3.1.2, as are necessary so that
the outstanding principal balance of the Loans does not exceed the Loan
Availability. Failure by Borrower to have complied with the foregoing in
a timely manner shall constitute an Event of Default without further
notice or grace period hereunder. No further Borrowings, and no
Termination of Designation with respect to any Unencumbered Pool
Property, shall be permitted so long as such excess borrowing condition
shall continue to exist. Nothing in this subparagraph (c) shall excuse
Borrower's compliance with all terms, conditions, covenants and other
obligations imposed upon it under the Loan Documents during the period
of such excess borrowing, nor in any manner condition or impair
Administrative Agent's or any Lender's or Designated Bid Lender's rights
thereunder in respect of any such breach thereof by Borrower.
2.1.2 Committed Loan Borrowings.
(a) (i)Whenever Borrower desires to borrow under the
Committed Facility, but in no event more than three (3) times
during any one (1) calendar month, Borrower shall give
Administrative Agent, at ▇▇▇▇▇ Fargo Real Estate Group
Disbursement Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax no. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to: ▇▇▇▇▇
Fargo Bank, Real Estate Group, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (fax no.
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(▇▇▇) ▇▇▇-▇▇▇▇), or to such other address(es), persons or fax
numbers as Administrative Agent shall designate, an original or
facsimile Notice of Borrowing no later than 9:00 a.m. (San
Francisco time), not less than three (3) nor more than five (5)
Business Days prior to the proposed Funding Date of each
Committed Loan.
(ii) Notwithstanding the foregoing or any other
provision hereof to the contrary: in addition to the number of
Committed Loans permissible monthly under the general Committed
Facility pursuant to Section 2.1.2(a)(i), Borrower shall be
permitted to borrow under the Swing Line up to two (2) times
during any calendar month, provided that (A) the Notice of
Borrowing with respect to any Swing Line Borrowing shall be given
by Borrower to Administrative Agent no later than 9:00 a.m. (San
Francisco time) on the proposed Funding Date of such Swing Line
Borrowing and shall designate such Borrowing as a Base Rate Loan;
and (B) each requested Borrowing under the Swing Line shall equal
Five Hundred Thousand Dollars ($500,000) or an integral multiple
of Ten Thousand Dollars ($10,000) in excess thereof. The
obligation of the Administrative Agent (as the Swing Line Lender)
to fund Swing Line Borrowings in accordance with Section 2.1.4
shall not be subject to Section 11.3: the other Lenders have no
obligation under Section 11.3.1 to fund their Pro Rata Share of
any Swing Line Borrowing, and the Administrative Agent alone (as
the Swing Line Lender) shall fund all Swing Line Borrowings.
Except as provided in Section 2.1.1(a)(ii), in the preceding
sentences of this Section 2.1.2(a)(ii), in Section 2.6.1(a) or in
Section 11.3.3, all other provisions of this Agreement shall
apply to any such Swing Line Borrowing.
(iii) Each Notice of Borrowing shall specify (subject to
the other provisions of this Agreement relating to Swing Line
Borrowings) (1) the Funding Date (which shall be a Business Day)
in respect of the Committed Loan requested therein, (2) the
amount of the proposed Committed Loan, provided that the
aggregate amount of such proposed Committed Loan shall equal One
Million Dollars ($1,000,000) or an integral multiple of One
Hundred Thousand Dollars ($100,000) in excess thereof, (3)
whether the Committed Loan to be made thereunder will be a Base
Rate Loan or a LIBOR Loan and, if a LIBOR Loan, the Interest
Period, (4) to which account of Borrower (if any) the funds are
to be directed, and (5) the proposed use of such Committed Loan.
Any Notice of Borrowing pursuant to this Section 2.1.2 shall be
irrevocable.
(b) Borrower may elect (i) to convert LIBOR Loans or any portion
thereof into Base Rate Loans, (ii) to convert Base Rate Loans or any
portion
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thereof to LIBOR Loans, or (iii) to continue any LIBOR Loans or any
portion thereof for an additional Interest Period, provided, however,
that the aggregate amount of the Committed Loans being converted into or
continued as LIBOR Loans shall, in the aggregate, equal One Million
Dollars ($1,000,000) or an integral multiple of One Hundred Thousand
Dollars ($100,000) in excess thereof. The applicable Interest Period for
the continuation of any LIBOR Loan shall commence on the day on which
the next preceding Interest Period expires. The conversion of a LIBOR
Loan to a Base Rate Loan shall only occur on the last Business Day of
the Interest Period relating to such LIBOR Loan; such conversion shall
occur automatically in the absence of an election under clause (iii)
above. Each election under clause (ii) or clause (iii) above shall be
made by Borrower giving Administrative Agent an original or facsimile
Notice of Borrowing no later than 9:00 a.m. (San Francisco time), not
less than three (3) nor more than five (5) Business Days prior to the
date of a conversion to or continuation of a LIBOR Loan, specifying, in
each case (1) the amount of the conversion or continuation, (2) the
Interest Period therefor, and (3) the date of the conversion or
continuation (which date shall be a Business Day).
(c) Upon receipt of a Notice of Borrowing in proper form
requesting LIBOR Loans under subparagraph (a) or (b) above,
Administrative Agent shall determine the LIBOR applicable to the
Interest Period for such LIBOR Loans, and shall, two (2) Business Days
prior to the beginning of such Interest Period, give (by facsimile) a
Fixed Rate Notice in respect thereof to Borrower and Lenders; provided,
however, that failure to give such notice to Borrower shall not affect
the validity of such rate, and no such notice need be given with respect
to the Loans subject to Sections 2.4.5(a)(i) and (ii). Each
determination by Administrative Agent of the LIBOR shall be conclusive
and binding upon the parties hereto in the absence of manifest error.
2.1.3 Bid Loan Borrowings.
(a) When Borrower desires to effect one or more Borrowings
consisting of one or more Bid Loans, but not more often than once in any
period of thirty (30) consecutive days, Borrower shall notify
Administrative Agent by telephone, followed promptly by facsimile of a
Competitive Bid Request, at ▇▇▇▇▇ Fargo Real Estate Group, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (fax (949)
▇▇▇-▇▇▇▇), with a copy to: ▇▇▇▇▇ Fargo Bank, Real Estate Group, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or such other address as Administrative
Agent shall designate (to be received no later than 8:00 a.m. (San
Francisco time), (x) in the case of a LIBOR Auction, five Business Days
prior to the proposed Funding Date of the requested Borrowing(s), or (y)
in the case of an Absolute Rate Auction, two Business Days prior to the
proposed Funding Date of the requested Borrowing(s),
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together with payment of the auction fee payable to Administrative Agent
as provided in the agency fee agreement referred to in Section 2.5.2),
specifying (together with the other information required to be provided
pursuant to Exhibit H):
(i) the Funding Date of such Borrowing(s), which shall be a
Business Day;
(ii) the aggregate amount of such Borrowing(s), which shall be in
an amount (subject to the limitations set forth in other provisions of
the Loan Documents) equal to $15,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(iii) whether the requested Borrowing(s) is/are to be made as
either (1) one or more LIBOR Bid Loans or (2) one or more Absolute Rate
Bid Loans; and
(iv) the duration of the requested Bid Loan Interest Period
(subject to the limitation that Borrower may request no more than three
Bid Loan Interest Periods in any single Competitive Bid Request).
Borrower's right to request Competitive Bids for LIBOR Bid Loans, and each
Lender's or Designated Bid Lender's obligation to fund any LIBOR Bid Loan
pursuant to any Competitive Bid accepted by Borrower, shall be subject in all
respects to the provisions of Section 2.4.8.
(b) Upon receipt of a Competitive Bid Request, Administrative
Agent shall promptly send a copy thereof to each of the Lenders by
facsimile, attaching thereto notice of the date and time by which
responses must be received in order to be considered by Borrower. The
Competitive Bid Request shall not constitute an offer by Borrower, but
merely an invitation to Lenders to submit Competitive Bids with respect
to the requested Borrowing(s).
(c) (i)Each Lender may, in its discretion, submit a Competitive
Bid containing an offer or offers to make Bid Loans in response to any
Competitive Bid Request. Each Competitive Bid must comply with the
provisions of this Section 2.1.3(c) and must be submitted to
Administrative Agent (or, in the case of a Competitive Bid being
submitted by Administrative Agent in its capacity as a Lender, to
Borrower), by facsimile, no later than 7:00 a.m. (or, in the case of a
Competitive Bid by Administrative Agent, 6:30 a.m.), San Francisco time,
(1) in the case of a LIBOR Auction, three Business Days prior to the
Funding Date of the proposed Borrowing(s), or (2) in the case of an
Absolute Rate Auction, on such Funding Date. Each Competitive Bid so
submitted (subject only to the provisions of Section 2.4.8, as described
above, to Borrower's eligibility to request
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bids as described in Section 2.1.1(b)(i) and to the satisfaction of all
conditions precedent to the requested Bid Loan(s)) shall be irrevocable,
unless Borrower otherwise agrees in writing.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit I, shall identify (and be signed on behalf of) the submitting
Lender and the date of the proposed Borrowing(s) specified in the
Competitive Bid Request to which the submitting Lender is responding and
shall specify:
(A) the principal amount of each Bid Loan for which the
Competitive Bid is being made (which shall not be limited by the
submitting Lender's Commitment, but which shall be in an amount, no
greater than the amount of the requested Borrowing, equal to $5,000,000
or an integral multiple of $1,000,000 in excess thereof); and
(B) (1) in the case of a LIBOR Auction, the LIBOR Bid Margin
offered by the submitting Lender, or (2) in the case of an Absolute Rate
Auction, the Absolute Rate offered by the submitting Lender.
A Competitive Bid may include up to three separate offers by the
submitting Lender with respect to each Bid Loan Interest Period
specified in the Competitive Bid Request to which it responds. Any
Competitive Bid that (X) does not include all the information required
by this Section 2.1.3(c), (Y) contains language that qualifies or
conditions the submitting Lender's offer to make the Bid Loan(s)
described therein or proposes terms other than (or in addition to) the
terms proposed in the relevant Competitive Bid Request other than to set
an aggregate limit on the principal amount of Bid Loans for which offers
being made by the submitting Lender may be accepted, or (Z) is received
by Administrative Agent (or Borrower, as applicable) after the time set
forth in Section 2.1.3(c)(i) (unless amended to bring it into compliance
prior to the time set forth in Section 2.1.3(c)(i)), shall be
disregarded.
(d) Promptly upon receipt, but not later than 8:00 a.m. (San
Francisco time) on the date by which Competitive Bids are required to
have been submitted with respect to a Competitive Bid Request,
Administrative Agent shall notify Borrower of (i) (A) the terms of each
Competitive Bid (other than one that is to be disregarded as described
above) received in response to the Competitive Bid Request, and (B) the
identity of the Lender submitting such Competitive Bid, and (ii) (A) the
aggregate principal amount of Bid Loans for which Competitive Bids have
been received for each Interest Period requested in the Competitive Bid
Request, and (B) the respective principal amounts and LIBOR Bid Margins
or Absolute Rates, as the case may be, so offered.
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(e) No later than 8:30 a.m. (San Francisco time) on the date by
which Competitive Bids are required to have been submitted with respect
to a Competitive Bid Request, Borrower shall notify Administrative
Agent, by means of a notice reasonably acceptable to Administrative
Agent in form, of its acceptance or rejection of the offers notified to
it as provided in Section 2.1.3(d). Borrower shall have no obligation to
accept any such offer, and may choose to reject all of them. If Borrower
has failed to timely notify Administrative Agent of its acceptance or
rejection of any one or more offers by the time specified in the
preceding sentence, Borrower shall be deemed to have rejected such
offer(s). Borrower may accept any Competitive Bid (other than one that
is to be disregarded as provided above) in whole or in part, provided
that:
(i) the aggregate principal amount of the Competitive Bids so
accepted may not exceed the aggregate amount of the Borrowing(s)
requested in the relevant Competitive Bid Request;
(ii) (A) subject to the provisions set forth below with respect
to multiple offers at the same LIBOR Bid Margin or Absolute Rate, the
principal amount of each accepted Competitive Bid must be in an amount
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, and (B) Competitive Bids must be accepted with respect to an
aggregate principal amount of at least $15,000,000; and
(iii) with respect to each Bid Loan Interest Period for which
Competitive Bids were requested, Borrower may accept offers solely on
the basis of ascending LIBOR Bid Margins or Absolute Rates, as the case
may be (provided that Borrower may, to the extent necessary to comply
with the preceding subparagraph (ii) or to accept offers in an aggregate
principal amount equal to the aggregate amount of the Borrowing(s)
requested in the relevant Competitive Bid Request, accept only part of
an offer at a particular LIBOR Bid Margin or Absolute Rate and accept
all or part of one or more offers at a higher LIBOR Bid Margin or
Absolute Rate).
If Borrower chooses to accept one or more offers, Borrower shall deliver a
notice to Administrative Agent (in such form as Administrative Agent may from
time to time reasonably request), specifying the aggregate principal amount of
offers with respect to each requested Bid Loan Interest Period that it chooses
to accept. If two or more Lenders offer the same LIBOR Bid Margin or Absolute
Rate for an aggregate principal amount greater than the amount for which such
offers were requested with respect to any requested Bid Loan Interest Period,
Borrower shall allocate the principal amount of the affected Bid Loan among such
Lenders as nearly as possible (in such multiples, not less than $1,000,000, as
Borrower may deem appropriate) in proportion to the aggregate principal amounts
to which their respective offers related. Borrower's allocation, in the absence
of manifest error, shall be conclusive.
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(f) Administrative Agent shall promptly notify each Lender having
submitted a Competitive Bid whether its offer has been accepted and, if
its offer has been accepted, of the amount of the Bid Loan(s) to be made
by it (or its Designated Bid Lender) on the date of the relevant
Borrowing(s).
(g) Promptly (but no later than one Business Day) following each
Borrowing of one or more Bid Loans, Administrative Agent shall notify
each Lender (whether or not such Lender submitted a Competitive Bid with
respect to such Borrowing) of the ranges of bids submitted and the
highest and lowest bids accepted for each Bid Loan Interest Period
requested by Borrower and of the aggregate amount of the Bid Loans made
pursuant to such Borrowing.
(h) Upon receipt of a Competitive Bid Request in proper form
requesting bids to make LIBOR Bid Loans under subparagraph (a) above,
Administrative Agent shall determine the LIBOR applicable to each of the
Bid Loan Interest Periods specified in the Competitive Bid Request, and
shall, two (2) Business Days prior to the beginning of such Bid Loan
Interest Period, give (by facsimile) notice of such rate (or rates, as
the case may be) to Borrower and Lenders; provided, however, that
failure to give such notice to any Person shall not affect the validity
of such rate. Each determination by Administrative Agent of the LIBOR
shall be conclusive and binding upon the parties hereto in the absence
of manifest error.
2.1.4 Making of Loans. Subject to Section 11.3, Administrative Agent
shall make the proceeds of Loans available to Borrower on the relevant Funding
Date and (except for proceeds of Committed Loans required to be applied to the
repayment of outstanding Swing Line Borrowings, which shall be credited on the
relevant Funding Date to the repayment of such Swing Line Borrowings) shall
disburse such funds in Dollars in immediately available funds to Borrower's
commercial demand account at ▇▇▇▇▇ Fargo, Account Number 4233-040799 or such
other account, acceptable to Administrative Agent, as may be specified in the
Notice of Borrowing or otherwise requested by Borrower in a writing that is
received by Administrative Agent no later than 9:00 a.m. (San Francisco time) on
such Funding Date.
2.1.5 Term. The outstanding principal of each Bid Loan shall be
payable in full on the last day of the Bid Loan Interest Period applicable
thereto. In addition: the outstanding balance of the Loans (in the case of
clause (iii) only, except for the Bid Loans) shall be payable in full on the
earliest to occur of (i) the third anniversary of the Closing Date, (ii) the
acceleration of the Loans pursuant to Section 10.2.1, or (iii) Borrower's
written notice to Administrative Agent (pursuant to Section 2.6.1) of Borrower's
election to prepay all accrued Obligations in respect of the Committed Loans and
terminate all Commitments (the "Termination Date"). Any Bid Loan outstanding on
the date on which a termination described in the foregoing clause (iii) (a
"Voluntary
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Termination") becomes effective shall be permitted to remain outstanding and
(subject to acceleration thereof pursuant to Section 10.2.1) shall be due and
payable on the last day of the Bid Loan Interest Period applicable thereto.
2.1.6 Extension Option. Borrower shall have the option to extend
("Extension Option") the term of the Committed Facility and the Loans from the
Termination Date (for purposes of this Section, the "Original Termination Date")
to the Extended Termination Date upon satisfaction of each of the following
conditions precedent:
(a) Borrower shall provide Administrative Agent with written
notice of Borrower's request to exercise the Extension Option not less
than ninety (90) days, nor more than one hundred twenty (120) days,
prior to the Original Termination Date;
(b) As of the date of Borrower's delivery of notice of the
request to exercise the Extension Option, and as of the Original
Termination Date, no Event of Default or Unmatured Event of Default
shall have occurred and be continuing, and Borrower shall so certify to
Administrative Agent in writing; and
(c) On or before the Original Termination Date, Borrower shall
pay to Administrative Agent, on behalf of Lenders in accordance with
their Pro Rata Shares, an extension fee ("Extension Fee") in the amount
of 0.15% of the Committed Facility.
2.2. Authorization to Obtain Loans. Borrower shall provide
Administrative Agent with documentation satisfactory to Administrative Agent
indicating the names of those employees of Borrower authorized by Borrower to
sign Notices of Borrowing and Competitive Bid Requests, and Administrative Agent
and Lenders shall be entitled to rely on such documentation until notified in
writing by Borrower of any change(s) of the persons so authorized.
Administrative Agent shall be entitled to act on the instructions of anyone
identifying himself or herself as one of the Persons authorized to execute a
Notice of Borrowing or Competitive Bid Request, and Borrower shall be bound
thereby in the same manner as if such Person were actually so authorized.
Borrower agrees to indemnify, defend and hold Lenders and Administrative Agent
harmless from and against any and all Liabilities and Costs which may arise or
be created by the acceptance of instructions in any Notice of Borrowing, unless
caused by the gross negligence of the Person to be indemnified.
2.3. Lenders' Accounting.
2.3.1 Administrative Agent shall maintain a loan account (the "Loan
Account") on its books in which shall be recorded (i) the names and addresses
and the Commitments of Lenders and the names and addresses of Designated Bid
Lenders, and
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the principal amount of Loans owing to each Lender and Designated Bid Lender
from time to time, and (ii) all advances and repayments of principal and
payments of accrued interest under the Loans, as well as payments of the
Facility Fee, as provided in this Agreement, separately identifying Loans and
prepayments (or repayments, as the case may be) under the Swing Line and under
the Bid Loan Facility. All entries in the Loan Account shall be made in
accordance with Administrative Agent's customary accounting practices as in
effect from time to time. Monthly or at such other interval as is customary with
Administrative Agent's practice, Administrative Agent will render a statement of
the Loan Account to Borrower and will deliver a copy thereof to each Lender (for
itself and for transmittal to its Designated Bid Lender, if any). Each such
statement shall be deemed final, binding and conclusive upon Borrower in all
respects as to all matters reflected therein (absent manifest error), unless
Borrower, within thirty (30) days after the date such statement is mailed or
otherwise delivered to Borrower, delivers to Administrative Agent written notice
of any objections which Borrower may have to any such statement, or within ten
(10) days after discovery by Borrower of an error with respect to which Borrower
had no knowledge and which could not have been determined after reasonable
inquiry during said 30-day period. In that event, only those items expressly
objected to in such notice shall be deemed to be disputed by Borrower. In the
event that any such objection cannot be settled by Administrative Agent and
Borrower within thirty (30) days after Administrative Agent receives notice
thereof from Borrower, Administrative Agent shall notify all Lenders of such
objection. Notwithstanding the foregoing, Administrative Agent's entries in the
Loan Account evidencing Loans and other financial accommodations made from time
to time shall be final, binding and conclusive upon Borrower (absent manifest
error) as to the existence and amount of the Obligations recorded in the Loan
Account.
2.3.2 From time to time, Borrower, Lenders and Designated Bid
Lenders shall furnish such information to Administrative Agent as Administrative
Agent may reasonably request relating to the Bid Loans, including the amounts,
interest rates, dates of Borrowing and last days of the applicable Bid Loan
Interest Periods, for the purpose of enabling Administrative Agent to allocate
amounts received from Borrower to payment of amounts due and owing under the
Loan Documents.
2.4. Interest on the Loans.
2.4.1 Base Rate Loans. Subject to Section 2.4.5, all Base Rate Loans
shall bear interest on the average daily unpaid principal amount thereof from
the date made until paid in full at a fluctuating rate per annum equal to the
sum of the Base Rate plus the Applicable Base Rate Margin. Base Rate Loans shall
be made in minimum amounts of One Million Dollars ($1,000,000) or an integral
multiple of One Hundred Thousand ($100,000) in excess thereof.
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2.4.2 LIBOR Loans. Subject to Sections 2.4.5 and 2.4.8, all LIBOR
Loans shall bear interest on the unpaid principal amount thereof during the
Interest Period applicable thereto at a rate per annum equal to the sum of LIBOR
for such Interest Period plus the Applicable LIBOR Rate Margin. LIBOR Loans
shall be in tranches of One Million Dollars ($1,000,000) or One Hundred Thousand
Dollar ($100,000) increments in excess thereof. Subject to the limitation on the
total number of Interest Periods that may be outstanding at any time set forth
in Section 2.1.1(b), no more than eight (8) LIBOR Loan tranches shall be
outstanding at any one time. Notwithstanding anything to the contrary contained
herein and subject to the Default Interest provisions contained herein, if an
Event of Default occurs and as a result thereof the Commitments are terminated,
all LIBOR Loans will convert to Base Rate Loans upon the expiration of the
applicable Interest Periods therefor or the date all Loans become due, whichever
occurs first.
2.4.3 Bid Loans. Subject to Section 2.4.5 (and, in the case of LIBOR
Bid Loans, Section 2.4.8), each Bid Loan shall bear interest, from and including
the date it is made to but excluding the last day of the Bid Loan Interest
Period applicable thereto, at a rate per annum equal to (A) in the case of an
Absolute Rate Bid Loan, the Absolute Rate specified by the Lender making (or
whose Designated Bid Lender makes) such Absolute Rate Bid Loan in its accepted
Competitive Bid, and (B) in the case of a LIBOR Bid Loan, the sum of (1) the
LIBOR Bid Margin specified by the Lender making (or whose Designated Bid Lender
makes) such LIBOR Bid Loan in its accepted Competitive Bid, plus (2) LIBOR. Any
portion of the principal of a Bid Loan that is not paid when due shall
thereafter bear interest, from and including the date it was due to but not
including the date it is paid, at a rate that is five percent (5%) per annum in
excess of the non-default rate applicable to Base Rate Loans.
2.4.4 Interest Payments. Subject to Section 2.4.5, interest accrued
on all Loans shall be payable by Borrower, in the manner provided in Section
2.6.2, in arrears on (a) the first Business Day of the first calendar month
following the Closing Date, (b) the first Business Day of each succeeding
calendar month thereafter, and (c) (i) if the Termination Date occurs by reason
of an event other than a Voluntary Termination, on the Termination Date, or (ii)
in the case of a Voluntary Termination: (A) with respect to the Committed Loans,
on the Termination Date, and (B) with respect to any Bid Loans that remain
outstanding after the Termination Date, on the first Business Day of each
succeeding calendar month thereafter and on the last day of the Bid Loan
Interest Period applicable thereto (or upon acceleration thereof pursuant to
Section 10.2.1).
2.4.5 Default Interest. Notwithstanding the rates of interest
specified in Sections 2.4.1, 2.4.2 and 2.4.3 and the payment dates specified in
Section 2.4.4, effective immediately upon the occurrence and during the
continuance of any Event of Default, the principal balance of each Loan then
outstanding and, to the extent permitted by applicable law, any interest
payments on the Loans not paid when due, shall bear interest
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payable upon demand at a rate which is four percent (4%) per annum in excess of
the rate(s) of interest otherwise payable from time to time under this
Agreement. All other amounts due Administrative Agent, Lenders or Designated Bid
Lenders (whether directly or for reimbursement) under this Agreement or any of
the other Loan Documents if not paid when due, or if no due date is expressed,
if not paid within ten (10) days after demand, shall bear interest from and
after such due date or demand, as the case may be, at a rate that is four
percent (4%) per annum in excess of the non-default rate applicable to Base Rate
Loans.
2.4.6 Computation of Interest. Interest shall be computed on the
basis of the actual number of days elapsed in the period during which interest
or fees accrue and a year of three hundred sixty (360) days. In computing
interest on any Loan, the date of the making of the Loan shall be included and
the date of payment shall be excluded; provided, however, that if a Loan is
repaid on the same day on which it is made, one (1) day's interest shall be paid
on that Loan. Notwithstanding any provision in this Section 2.4, interest in
respect of any Loan shall not exceed the maximum rate permitted by applicable
law. Changes in the Applicable Base Rate Margin or the Applicable LIBOR Rate
Margin shall take effect as of the date on which the condition set forth in the
relevant clause of the definition of each such term is satisfied.
2.4.7 Changes; Legal Restrictions. In the event that after the
Closing Date (i) the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of a court or Governmental Authority or
any change in the interpretation or application thereof by a court or
Governmental Authority, or (ii) compliance by Administrative Agent or any Lender
with any request or directive made or issued after the Closing Date (whether or
not having the force of law and whether or not the failure to comply therewith
would be unlawful) from any central bank or other Governmental Authority or
quasi-governmental authority:
(a) subjects Administrative Agent or any Lender to any tax, duty
or other charge of any kind with respect to the Committed Facility, the
Bid Loan Facility, this Agreement or any of the other Loan Documents or
the Loans, or changes the basis of taxation of payments to
Administrative Agent or such Lender of principal, fees, interest or any
other amount payable hereunder, except for net income, gross receipts,
gross profits or franchise taxes imposed by any jurisdiction and not
specifically based upon loan transactions (all such non-excepted taxes,
duties and other charges being hereinafter referred to as "Lender
Taxes");
(b) imposes, modifies or holds applicable, in the determination
of Administrative Agent or any Lender, any reserve, special deposit,
compulsory loan, FDIC insurance, capital allocation or similar
requirement (other than a requirement of the type described in Section
2.7) against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other
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credit extended by, or any other acquisition of funds by, Administrative
Agent or such Lender or any applicable lending office (except to the
extent that the reserve and FDIC insurance requirements are reflected in
the "Base Rate" or in determining LIBOR); or
(c) imposes on Administrative Agent or any Lender any other
condition (other than one described in Section 2.7) materially more
burdensome in nature, extent or consequence than those in existence as
of the Closing Date, and the result of any of the foregoing is to
increase the cost to Administrative Agent or any Lender of making,
renewing, maintaining or participating in the Loans or to reduce any
amount receivable thereunder; then, in any such case, Borrower shall
promptly pay to Administrative Agent or such Lender, as applicable, upon
demand, such amount or amounts (based upon a reasonable allocation
thereof by Administrative Agent or such Lender to the financing
transactions contemplated by this Agreement and affected by this Section
2.4.7) as may be necessary to compensate Administrative Agent or such
Lender for any such additional cost incurred or reduced amounts
received; provided, however, that if the payment of such compensation
may not be legally made whether by modification of the applicable
interest rate or otherwise, then Lenders shall have no further
obligation to make Loans that cause Administrative Agent or any Lender
to incur such increased cost, and all affected Loans shall become
immediately due and payable by Borrower. Administrative Agent or such
Lender shall deliver to Borrower and in the case of a delivery by
Lender, such Lender shall also deliver to Administrative Agent, a
written statement of the claimed additional costs incurred or reduced
amounts received and the basis therefor as soon as reasonably
practicable after such Lender obtains knowledge thereof. If
Administrative Agent or any Lender subsequently recovers any amount of
Lender Taxes previously paid by Borrower pursuant to this Section 2.4.7,
whether before or after termination of this Agreement, then, upon
receipt of good funds with respect to such recovery, Administrative
Agent or such Lender will refund such amount to Borrower if no Event of
Default or Unmatured Event of Default then exists or, if an Event of
Default or Unmatured Event of Default then exists, such amount will be
credited to the Obligations in the manner determined by Administrative
Agent or such Lender.
2.4.8 Certain Provisions Regarding LIBOR Loans and Bid Loans.
(a) LIBOR Lending Unlawful. If any Lender or Designated Bid
Lender shall determine (which determination shall, upon notice thereof
to Borrower and Administrative Agent, be conclusive and binding on the
parties hereto) that the introduction of or any change in or in the
interpretation of any law makes it unlawful, or any central bank or
other Governmental Authority asserts that it is unlawful, for such
Lender or Designated Bid Lender to make or maintain
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any Loan as a LIBOR Loan or a LIBOR Bid Loan, as the case may be, (i)
the obligations of such Lenders or Designated Bid Lenders to make or
maintain any Loans as LIBOR Loans or LIBOR Bid Loans shall, upon such
determination, forthwith be suspended until such Lender or Designated
Bid Lender shall notify Administrative Agent that the circumstances
causing such suspension no longer exist, and (ii) if required by such
law or assertion, the LIBOR Loans and LIBOR Bid Loans of such Lender or
Designated Bid Lender shall automatically convert into Base Rate Loans
(which, in the case of a LIBOR Bid Loan so converted, shall nevertheless
be due and payable in full on the last day of the relevant Bid Loan
Interest Period).
(b) Deposits Unavailable. If Administrative Agent shall have
determined in good faith that adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBOR Loans or
LIBOR Bid Loans, then, upon notice from Administrative Agent to Borrower
the obligations of all Lenders and Designated Bid Lenders to make or
maintain Loans as LIBOR Loans or LIBOR Bid Loans, as the case may be,
shall forthwith be suspended until Administrative Agent shall notify
Borrower that the circumstances causing such suspension no longer exist.
Administrative Agent will give such notice when it determines, in good
faith, that such circumstances no longer exist; provided, however, that
Administrative Agent shall not have any liability to any Person with
respect to any delay in giving such notice.
(c) Fixed Rate Price Adjustment. Borrower acknowledges that
prepayment or acceleration of a LIBOR Loan or a Bid Loan during an
Interest Period shall result in the affected Lenders and Designated Bid
Lenders incurring additional costs, expenses and/or liabilities and that
it is extremely difficult and impractical to ascertain the extent of
such costs, expenses and/or liabilities. (For all purposes of this
subparagraph (c), any Loan not being made as a LIBOR Loan or a Bid Loan
in accordance with the Notice of Borrowing or acceptance of a
Competitive Bid therefor, as a result of Borrower's cancellation
thereof, shall be treated as if such LIBOR Loan or Bid Loan, as the case
may be, had been made by the Lender submitting such Competitive Bid (and
not by its Designated Bid Lender) and had been prepaid.) Therefore, on
the date a LIBOR Loan or Bid Loan is prepaid or the date all sums
payable hereunder become due and payable, by acceleration or otherwise
("Price Adjustment Date"), Borrower will pay to Administrative Agent,
for the account of each affected Lender or Designated Bid Lender (in
addition to all other sums then owing), an amount ("Fixed Rate Price
Adjustment") equal to:
(i) in the case of a LIBOR Loan or a LIBOR Bid Loan, the then
present value of (A) the amount of interest that would have
accrued on the LIBOR Loan or LIBOR Bid Loan for the remainder of
the Interest
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Period at the rate applicable to such LIBOR Loan or LIBOR Bid
Loan, less (B) the amount of interest that would accrue on the
same Loan for the same period if LIBOR were set on the Price
Adjustment Date, calculating the present value by using as a
discount rate LIBOR quoted on the Price Adjustment Date; or
(ii) in the case of an Absolute Rate Bid Loan, the sum of
such losses and expenses as the Lender or Designated Bid Lender
who made such Absolute Rate Bid Loan may reasonably incur by
reason of such prepayment, including without limitation any
losses or expenses incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of
margin for the period after such prepayment.
(d) Upon the written notice to Borrower from Administrative
Agent, Borrower shall immediately pay to Administrative Agent, for the
account of the affected Lenders and Designated Bid Lenders, the Fixed
Rate Price Adjustment payable with respect to each affected Loan. Such
written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on
the parties hereto.
(e) Borrower understands, agrees and acknowledges the following:
(i) no Lender or Designated Bid Lender has any obligation to purchase,
sell and/or match funds in connection with the use of LIBOR as a basis
for calculating the rate of interest on a LIBOR Loan or LIBOR Bid Loan
or a Fixed Rate Price Adjustment; (ii) LIBOR is used merely as a
reference in determining such rate and/or Fixed Rate Price Adjustment;
and (iii) Borrower has accepted LIBOR as a reasonable and fair basis for
calculating such rate and/or a Fixed Rate Price Adjustment. Borrower
further agrees to pay the Fixed Rate Price Adjustment and Lender Taxes,
if any, whether or not a Lender or Designated Bid Lender elects to
purchase, sell and/or match funds.
2.4.9 Withholding Tax Exemption. At least five (5) Business Days
prior to the first day on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
Administrative Agent and Borrower two (2) duly completed copies of United States
Internal Revenue Service Form W-8ECI or Form W-8BEN and either Internal Revenue
Service Form W-8 or Internal Revenue Service Form W-9 and any additional form
(or such other form) as is necessary to claim complete exemption from United
States withholding taxes on all payments hereunder. Each Lender which so
delivers the above-referenced forms further undertakes to deliver to
Administrative Agent and Borrower two (2) additional copies of such forms (or
any applicable successor form) on or before the date that such forms expire or
become obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may
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be reasonably requested by Administrative Agent or Borrower, in each case
certifying 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
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income taxes. If any Lender cannot deliver such form, then
Borrower may withhold from such payments such amounts as are required by the
Internal Revenue Code.
2.5. Fees.
2.5.1 Facility Fee. From and after the Closing Date and until the
Obligations are paid in full and this Agreement is terminated or, if sooner, the
date the Commitments terminate, Borrower shall pay to Administrative Agent, for
the account of each Lender, a fee (the "Facility Fee") in an annualized amount
equal to the Applicable Facility Fee Percentage of the Commitment. The Facility
Fee shall be payable, in the manner provided in Section 2.6.2, in arrears, on
the first Business Day in each Fiscal Quarter in an amount equal to one-quarter
of the Applicable Facility Fee Percentage of the Commitment as of the day
immediately preceding the date on which such payment is due, beginning with the
first Fiscal Quarter after the Closing Date, and on the date of payment in full
of all Obligations with respect to Committed Loans to Lenders under Section
2.1.5 or of all Obligations to a Lender pursuant to Section 2.9, with the
Facility Fee to be prorated to the date of such payment in the case of any
partial quarter.
2.5.2 Additional Fees. Borrower shall pay Administrative Agent when
due certain additional arrangement, loan and periodic agency fees as are
provided for in a separate fee agreement between Administrative Agent and
Borrower, as in existence from time to time.
2.5.3 Payment of Fees. The fees described in Section 4.1.13 and in
this Section 2.5 represent compensation for services rendered and to be rendered
separate and apart from the lending of money or the provision of credit and do
not constitute compensation for the use, detention or forbearance of money, and
the obligation of Borrower to pay the fees described herein shall be in addition
to, and not in lieu of, the obligation of Borrower to pay interest, other fees
and expenses otherwise described in this Agreement. All fees shall be payable
when due in immediately available funds and shall be non-refundable when paid.
If Borrower fails to make any payment of fees or expenses specified or referred
to in this Agreement due to Administrative Agent, Lenders or Designated Bid
Lenders, including without limitation (in each case, to the extent applicable)
those referred to in this Section 2.5, in Section 12.1, or otherwise under this
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Agreement or any separate fee agreement between Borrower and Administrative
Agent or any Lender relating to this Agreement, when due, the amount due shall
bear interest until paid at the Base Rate and, after ten (10) days at the rate
specified in Section 2.4.5 (but not to exceed the maximum rate permitted by
applicable law), and shall constitute part of the Obligations. The Facility Fee
(for partial quarters) and the fees referred to in Section 2.5.2 which are
expressed as a per annum charge shall be calculated on the basis of the actual
number of days elapsed in a three hundred sixty (360) day year.
2.6. Payments.
2.6.1 Voluntary Prepayments; Reduction in Facility.
(a) Borrower may, upon not less than three (3) Business Days
prior written notice to Administrative Agent not later than 11:00 a.m.
(San Francisco time) on the date given, at any time and from time to
time, prepay any Committed Loans in whole or in part; provided that,
notwithstanding the foregoing, Borrower may, upon not less than one (1)
Business Day's prior written notice to Administrative Agent not later
than 11:00 a.m. (San Francisco time) on the date given, at any time and
from time to time, prepay Swing Line Borrowings in whole or in part. If,
at the time of prepayment of the Committed Loans, there are outstanding
any Swing Line Borrowings, such prepayment shall be applied first to the
prepayment of outstanding Swing Line Borrowings, and second to the
prepayment of other Committed Loans. Any notice of prepayment given to
Administrative Agent under this Section 2.6.1 shall specify the date of
prepayment and the aggregate principal amount of the prepayment. In the
event of a prepayment of LIBOR Loans, other than in connection with the
prepayment of all accrued Obligations in respect of the Committed Loans
and termination of all Commitments pursuant to a notice delivered under
this Section 2.6.1(a), within thirty (30) days after a demand by
Administrative Agent or any Lender for payment or reimbursement pursuant
to Section 2.7, Borrower shall concurrently pay any Fixed Rate Price
Adjustment payable in respect thereof. Administrative Agent shall
provide to each Lender a confirming copy of such notice on the same
Business Day such notice is received.
(b) Bid Loans. Borrower shall have no right to pay all or any
portion of any Bid Loan prior to the last day of the Bid Loan Interest
Period applicable thereto.
2.6.2 Manner and Time of Payment. All payments of principal,
interest and fees hereunder payable to Administrative Agent, Lenders or
Designated Bid Lenders shall be made without condition or reservation of right
and free of set-off or counterclaim, in Dollars and by wire transfer (pursuant
to Administrative Agent's written wire transfer instructions) of immediately
available funds, to Administrative Agent, for
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the account of each Lender and Designated Bid Lender, not later than 11:00 a.m.
(San Francisco time) on the date due; and funds received by Administrative Agent
after that time and date shall be deemed to have been paid on the next
succeeding Business Day. In order to assure timely payment of interest on the
Loans and fees pursuant to Section 2.5, Borrower hereby irrevocably authorizes
Administrative Agent to directly debit Borrower's demand deposit account with
Administrative Agent (Account No. 4233-040799) for payment when due of all such
interest and fees payable to Lenders and Designated Bid Lenders. Written notice
of the amount and purpose of any such direct debit shall be given to Borrower by
Administrative Agent not less than two (2) Business Days prior to its effective
date; provided, however, that Administrative Agent's failure to give such notice
shall not affect the validity of, or Borrower's authorization of, such debit. In
the event any direct debit hereunder is returned for insufficient funds,
Borrower shall, upon notice from Administrative Agent, immediately deposit
sufficient funds into said account to pay all interest, fees and other related
charges due and owing to Lenders and Designated Bid Lenders; provided, however,
that any such insufficiency of funds in said account shall not excuse or delay
the timely payment by Borrower of the full amount of such interest, fees and
related charges or relieve Borrower of its obligations under Section 2.4.5 in
respect of any such insufficiency. The statement of the Loan Account provided by
Administrative Agent to Borrower shall show the amounts and dates of such direct
debits.
2.6.3 Payments on Non-Business Days. Whenever any payment to be made
by Borrower hereunder shall be stated to be due on a day which is not a Business
Day, payments shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder and of any of the fees specified in Section 2.5, as the case
may be.
2.7. Increased Capital. If either (i) the introduction of or any change
in or in the interpretation of any law or regulation or (ii) compliance by
Administrative Agent or any Lender with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law and whether or not the failure to comply therewith would be unlawful) made
or issued after the Closing Date affects or would affect the amount of capital
required or expected to be maintained by Administrative Agent or such Lender or
any corporation controlling Administrative Agent or such Lender, and
Administrative Agent or such Lender determines that the amount of such capital
is increased by or based upon the existence of Administrative Agent's
obligations hereunder or such Lender's Commitment, then, upon demand by
Administrative Agent or such Lender, Borrower shall immediately pay to
Administrative Agent or such Lender, from time to time as specified by
Administrative Agent or such Lender, additional amounts sufficient to compensate
Administrative Agent or such Lender in the light of such circumstances, to the
extent that Administrative Agent or such Lender determines such increase in
capital to be allocable to the existence of Administrative Agent's obligations
hereunder or such Lender's Commitment; provided,
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however, that (i) neither Administrative Agent nor any Lender may claim under
this Section 2.7 any such additional amount attributable to any period preceding
the date that is ninety (90) days prior to the date of its demand, and (ii)
before making any such demand, Administrative Agent, and each Lender, agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different lending office as its lending
office for purposes of the Loans and its Commitment, if the making of such a
designation (1) would avoid the need for, or reduce the amount of, such demand
and (2) would not, in the reasonable judgment of Administrative Agent or such
Lender, as the case may be, be otherwise disadvantageous to it; and provided
further that neither Administrative Agent nor any Lender may claim under this
Section 2.7 any such amount to the extent that it is not, at the time such claim
is asserted, such Person's general practice to make claims for such amounts in
similar circumstances, under comparable provisions of credit agreements, if any,
with similarly situated borrowers. A certificate as to such amounts submitted to
Borrower by Administrative Agent or such Lender shall, in the absence of
manifest error, be conclusive and binding for all purposes.
2.8. Notice of Increased Costs. Each Lender and Designated Bid Lender
agrees that, as promptly as reasonably practicable after it becomes aware of the
occurrence of an event or the existence of a condition which would cause it to
be affected by any of the events or conditions described in Section 2.4.7 or
2.4.8 or Section 2.7 (in each case, to the extent applicable), it will notify
Borrower, and provide a copy of such notice to Administrative Agent, of such
event and the possible effects thereof, provided that the failure to provide
such notice shall not affect such Lender's or Designated Bid Lender's rights to
reimbursement provided for herein.
2.9. Option to Replace Lenders. If any Lender shall:
2.9.1 fail or refuse to fund its portion of any Loan (including, in
the case of any Designating Lender, any Bid Loan not funded by its Designated
Bid Lender) for any reason other than the failure of Borrower to satisfy the
conditions precedent to such Loan hereunder and such failure continues for two
(2) Business Days after notice from Borrower to such Lender that Borrower
intends to exercise its rights hereunder;
2.9.2 make any demand for payment or reimbursement pursuant to
Section 2.4.7; or
2.9.3 make any demand for payment or reimbursement pursuant to
Section 2.7,
then, in any of the foregoing cases, provided that (i) there does not then exist
any Unmatured Event of Default or Event of Default and (ii) the circumstances
resulting in such demand for payment or reimbursement are not applicable to all
Lenders, Borrower may cause the Commitment of such Lender to be assumed by a
replacement lender, in
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whole but not in part, by (1) giving such Lender and Administrative Agent not
less than three (3) Business Days' prior written notice thereof, which notice
shall be irrevocable and effective only upon receipt thereof by such Lender and
Administrative Agent and shall specify the effective date of such assumption,
(2) pursuant to the provisions of Section 11.12, bringing in a new Lender, or
obtaining the agreement of one or more existing Lenders, to assume the entire
amount of the Commitment of the Lender whose Commitment is being assumed and to
purchase all outstanding Loans, including Bid Loans, owed to such Lender (and,
for purposes of such transaction, such Lender's Bid Loans may be assigned to
such new Lender, or to such existing Lender(s), notwithstanding any provision to
the contrary contained in any Loan Document), on the effective date of such
assumption, (3) paying to such Lender (and there shall become due and payable)
on such date all Obligations, other than in respect of principal or interest,
owed to such Lender, including, without limitation, amounts owing under (A)
Sections 2.4.7, 2.4.8(d), 2.4.8(e), 2.5 and 2.7, and (B) except in the case of a
demand for payment or reimbursement pursuant to Section 2.7, Section 2.4.8(c),
and (4) if the Lender whose Commitment is being so assumed is also
Administrative Agent, causing such Administrative Agent to be replaced by a new
Administrative Agent pursuant to the provisions of Section 11.9. Upon the
satisfaction of all of the foregoing conditions, such Lender shall cease to be a
"Lender" for purposes of this Agreement, provided that Borrower shall continue
to be obligated to such Lender under Sections 12.1 and 12.2 with respect to or
on account of unpaid, unliquidated, unknown or similar claims or liabilities
accruing prior to such Lender ceasing to be a "Lender" for purposes of this
Agreement.
ARTICLE III
UNENCUMBERED POOL PROPERTIES
3.1. Designation/Acceptance of Unencumbered Pool Properties.
3.1.1 Initial Unencumbered Pool Properties. Subject to compliance
with the terms and conditions of Section 4.1, Lenders have accepted the
properties listed on Schedule 1 as of the Closing Date as Unencumbered Pool
Properties.
3.1.2 Designation of Certain Properties as Unencumbered Pool
Properties.
(a) Borrower may designate an additional property as an
Unencumbered Pool Property by highlighting (or ▇▇▇▇▇▇▇) the proposed
Unencumbered Pool Property on the Unencumbered Pool Certificate
delivered to Administrative Agent in accordance with Section 6.1.6,
below, or by delivering to Administrative Agent a written notice to that
effect, together with a certification, in substantially the form of
Exhibit J, identifying the property and certifying that each of the
following criteria (the "UPP Eligibility Criteria") is true and correct
with respect to such property (such certification, a "UPP Eligibility
Certification"):
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(i) the property is either (A) wholly-owned in fee by
Borrower, a UPP Subpartnership or a Partnership that has
previously been approved by Administrative Agent and the Majority
Lenders to become a "UPP Subpartnership", or wholly-owned by two
or more of the foregoing Persons as tenants-in-common, or (B)
ground leased by a Person referred to in the preceding clause (A)
pursuant to a ground lease approved by Administrative Agent and
the Majority Lenders (subject to the limitations set forth
below), and in every instance neither such property, nor any
interest in the Person owning such Property (other than interests
held by Third Party Partners), is subject to (1) any Lien (other
than Permitted Liens) or (2) except in the case of a Guarantor
Subpartnership, any Negative Pledge; provided, however, that (x)
the aggregate Individual UPP Values of all such ground leased
properties (other than the Ground Leases) shall not exceed seven
and one-half percent (7.5%) of the Unencumbered Pool Value unless
otherwise approved by Administrative Agent and the Majority
Lenders; and (y) the foregoing limitation shall not apply to (a)
the Ground Leases and (b) other ground leases between Borrower or
such other Person or Persons, in each case, wholly-owned by the
REIT, by Borrower, by the REIT and Borrower, or, if approved by
Administrative Agent and the Majority Lenders, by Borrower and
one or more Guarantor Subpartnerships;
(ii) either (A) the property is improved with one or more
completed (1) office buildings, (2) industrial buildings, or (3)
buildings of such other type as Administrative Agent and the
Majority Lenders may from time to time approve for purposes of
the UPP Eligibility Criteria (the "Approved Property Types"), or
(B) unless otherwise approved by Administrative Agent and
Majority Lenders, (1) the Individual UPP Value of the property,
when added to the aggregate Individual UPP Values of all Special
UPPs of types other than the Approved Property Types, would not
exceed ten percent (10%) of the Unencumbered Pool Value, and (2)
the Individual UPP Value of the property would not exceed five
percent (5%) of the Unencumbered Pool Value (in each case,
determined as if such property were an Unencumbered Pool
Property) (and specifying which of the preceding clauses (A) and
(B) is applicable);
(iii) if such property were an Unencumbered Pool Property:
(A) the Aggregate Occupancy Rate, as of the date of such UPP
Eligibility Certification, would not be less than ninety percent
(90%); (B) the aggregate Individual UPP Values of the
Unencumbered Pool Properties owned by UPP Subpartnerships
(whether or not such UPP Subpartnerships are Guarantor
Subpartnerships), as of the date of such UPP Eligibility
Certification, would not exceed fifteen percent (15%) of the
Unencumbered
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Pool Value; and (C) the aggregate Individual UPP Values of the
Unencumbered Pool Properties owned by UPP Subpartnerships that
are not Guarantor Subpartnerships, as of the date of such UPP
Eligibility Certification, would not exceed five percent (5%) of
the Unencumbered Pool Value;
(iv) either (A) the property is located in California,
Oregon, Washington or Idaho, or in such other market as
Administrative Agent and the Majority Lenders may from time to
time approve for purposes of the UPP Eligibility Criteria (the
"Approved Markets"), or (B) unless otherwise approved by
Administrative Agent and the Majority Lenders, the Individual UPP
Value of the property, when added to the aggregate Individual UPP
Values of all Special UPPs located outside the Approved Markets,
would not exceed ten percent (10%) of the Unencumbered Pool Value
(determined as if such property were an Unencumbered Pool
Property) (and specifying which of the preceding clauses (A) and
(B) is applicable); and
(v) (A) Borrower has obtained both a "Phase I" environmental
assessment and a structural/physical report with respect to such
property, in each case, prepared as of a reasonably current
(identified) date by a consultant of good repute within the
region in which such property is located and believed by Borrower
to be competent (and identifying the consultant), (B) Borrower
has reviewed each such report and believes it reasonable to rely
upon such report, (C) in the case of an environmental assessment,
such assessment does not (a) identify any contamination or
potential contamination that has resulted in, or that could
reasonably be anticipated to result in, a material adverse effect
upon the condition (financial or otherwise), fair market value,
net operating income or prospects of such property, or (b)
recommend that any further material investigation be undertaken,
(D) in the case of a structural/physical report, such report does
not identify any material defect in construction or physical
condition of the property, material variance from any available
plans and specifications for the property or material violation
of applicable law, or other item of material concern with respect
to the structural integrity or physical condition of the
property, and (E) the property is not the subject of any material
condemnation proceedings (and Borrower has not received written
notice of any threatened material condemnation proceedings).
Subject to Section 3.1.2(b) and to execution and delivery of such items
or documents as may be appropriate under the circumstances (e.g., if the
property is owned by a Partnership that has not previously executed and
delivered a Guaranty, the execution and delivery of a Guaranty by such
Partnership), Borrower's
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designation of a property as an Unencumbered Pool Property in accordance
with the foregoing provisions of this Section 3.1.2 shall become
effective on the twentieth (20th) day following delivery of the relevant
Unencumbered Pool Certificate or UPP Eligibility Certification to
Administrative Agent.
(b) Promptly following receipt by Administrative Agent of a
Unencumbered Pool Certificate or UPP Eligibility Certification with
respect to a proposed Unencumbered Pool Property, Administrative Agent
shall transmit a copy thereof to each Lender, and, at the request of any
Lender made within twenty (20) days after Administrative Agent's receipt
of the Unencumbered Pool Certificate or UPP Eligibility Certification,
shall request of Borrower any or all of the information relating to such
property listed in Section 3.1.3 that may be relevant to determining the
accuracy of the relevant Unencumbered Pool Certificate or UPP
Eligibility Certification. If no such request is made during such
twenty-day period, then Borrower's designation of such property as an
Unencumbered Pool Property shall become effective in accordance with the
last sentence of Section 3.1.2(a). If any such request is made:
(i) Borrower shall deliver the requested information to
Administrative Agent, and Administrative Agent shall promptly
distribute the information to the Lender requesting same. If,
within twenty (20) days after Administrative Agent's receipt of
the requested information, no notice has been received by
Administrative Agent from any Lender challenging the proposed
designation on the grounds that the property does not satisfy the
UPP Eligibility Criteria, then (subject to execution and delivery
of such items or documents as may be appropriate under the
circumstances) the designation of such property as an
Unencumbered Pool Property shall become effective at the end of
such twenty-day period.
(ii) If, based on its review of such information, any Lender
concludes that the proposed property does not satisfy each of the
UPP Eligibility Criteria: (A) such Lender shall notify
Administrative Agent within twenty (20) days after Administrative
Agent's receipt of such information, identifying with reasonable
specificity the information giving rise to such conclusion, and
(B) Administrative Agent shall notify Borrower and each Lender.
(iii) Administrative Agent shall, as expeditiously as
possible, review the information identified by such Lender as the
basis for its challenge to such property's satisfaction of the
UPP Eligibility Criteria. If, following consultation with
Administrative Agent and Borrower, such Lender is still of the
opinion that such property does not satisfy the UPP Eligibility
Criteria, Administrative Agent shall so notify Borrower and each
Lender, and the designation of such property as an Unencumbered
Pool
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Property shall not become effective. If the assertion of
ineligibility is based on the inaccuracy of any of clauses (ii),
(iv) or (v) of the UPP Eligibility Criteria (provided that the
proposed property must be a completed improvement of one of the
types included in the definition of "Unencumbered Pool Property",
and the acceptance of such property as an Unencumbered Pool
Property shall not cause any Unmatured Event of Default or Event
of Default to exist), Borrower may, at its option, elect to
request, pursuant to Section 3.1.3, that such property be
accepted as an Unencumbered Pool Property notwithstanding the
property's failure to satisfy the UPP Eligibility Criteria, in
which case the provisions of Section 3.1.3 shall apply to the
acceptance of such property as an Unencumbered Pool Property,
except that Borrower need only provide such additional
information regarding such property as Administrative Agent or
any Lender (through Administrative Agent) may request.
(c) Borrower may, in contemplation of its designation for
inclusion in the Unencumbered Property Pool of ground leased property or
property that is to be owned (or ground leased) by a Partnership that
has not previously qualified as a UPP Subpartnership hereunder, deliver
to Administrative Agent copies, as applicable, of the ground lease (and
all related documentation) or the Partnership Agreement of such
Partnership and of such other information regarding such ground lease or
Partnership as may be reasonably requested by Administrative Agent for
submittal to the Lenders and possible approval of Administrative Agent
and the Majority Lenders.
(d) If at any time following the designation of a property as an
Unencumbered Pool Property in accordance with this Section 3.1.2
Administrative Agent, or Majority Lenders, shall determine that such
property is not in fact "Unencumbered Property" within the meaning of
that term set forth in Section 1.1, then, in addition to any other
consequences of such determination that may arise under the Loan
Documents, such property shall cease to constitute an "Unencumbered Pool
Property".
(e) Without limiting in any manner the general application of
Article XI to the performance of Administrative Agent's duties in
respect of the Loan Documents, Lenders agree that (i) Administrative
Agent shall have no responsibility, as Administrative Agent, to request
additional information with respect to any property for which Borrower
submits an Unencumbered Pool Certificate or UPP Eligibility
Certification or (except to the extent expressly set forth above)
otherwise to make any determination regarding the satisfaction of the
UPP Eligibility Criteria with respect to any property; (ii)
Administrative Agent's performance of its duties under this Section
3.1.2 shall be subject in all respects to the provisions of Article XI;
and (iii) Administrative Agent shall be entitled to all
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of the rights, protections and benefits of Article XI with respect to
its performance of its duties under this Section 3.1.2.
3.1.3 Acceptance of Certain Unencumbered Pool Properties. If
Borrower desires that Lenders accept as an Unencumbered Pool Property (but not
as a Special UPP) (i) an additional property that does not satisfy the UPP
Eligibility Criteria, or that, if designated as an Unencumbered Pool Property
pursuant to Section 3.1.2, would be a Special UPP, or (ii) an Unencumbered Pool
Property that is currently a Special UPP, Borrower shall so notify
Administrative Agent, and Administrative Agent shall promptly notify each other
Lender. In the case of a request that an existing Special UPP be accepted as an
Unencumbered Pool Property that is no longer a Special UPP, Borrower shall
deliver to Administrative Agent such information as may be reasonably requested
by Administrative Agent or any Lender in order to evaluate Borrower's request.
In the case of property other than an existing Special UPP, such additional
property will be evaluated by Lenders as a potential Unencumbered Pool Property
upon Borrower's delivery to Administrative Agent of such of the following as the
Administrative Agent may request in writing:
(a) A current operating statement for such property audited or
certified by Borrower as being true and correct in all material respects
and prepared in accordance with GAAP and comparative operating
statements (in the general form of the Quarterly Operating Reports) for
the current period and for the previous two (2) Fiscal Years; provided,
however, that, if Borrower shall have owned such property for less than
the period to be covered by such operating statements, then the audit
and certification requirements shall extend only to the period of
ownership by Borrower, so long as Borrower provides operating statements
prepared and certified by the former owner(s) for the remainder of the
period required hereunder;
(b) A current rent roll for such property and a three (3) year
operating and occupancy history of such property in form satisfactory to
Administrative Agent, and certified by Borrower to be true and correct;
(c) A copy of Borrower's most recent Owner's Policy of Title
Insurance and survey of such property (if any);
(d) The most recent "Phase I" environmental assessment of such
property, and any additional environmental studies or assessments in
Borrower's possession or control that have been performed with respect
to such property (including, in the case of a request for information
pursuant to Section 3.1.2, the environmental assessment of such property
relied upon by Borrower for purposes of its UPP Eligibility
Certification);
(e) Copies of all Major Agreements affecting such property;
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(f) Copies of engineering, mechanical, structural or maintenance
studies performed with respect to such property (including, in the case
of a request for information pursuant to Section 3.1.2, the
structural/physical report on such property relied upon by Borrower for
purposes of its UPP Eligibility Certification);
(g) If the property is to be owned by a Partnership that has not
previously qualified as a UPP Subpartnership hereunder, copies of the
Partnership Agreement of such Partnership and of such other information
regarding such Partnership as may be reasonably requested by
Administrative Agent; and
(h) Such other information as may be reasonably requested by
Administrative Agent or any Lender in order to evaluate the potential
Unencumbered Pool Property.
Following receipt of the foregoing documents and information, Administrative
Agent shall review them as expeditiously as is reasonably practicable under the
circumstances. If, following such review, Administrative Agent is prepared to
proceed with acceptance of such property as an Unencumbered Pool Property that
is not a Special UPP (including, if applicable, the acceptance of any proposed
UPP Subpartnership as a UPP Subpartnership), Administrative Agent will promptly
(i) so notify Borrower, and (ii) submit the foregoing documents and information
to the Lenders, for approval by the Majority Lenders. Upon such approval by the
Majority Lenders, and upon execution and delivery of such items or documents as
may be appropriate under the circumstances, such property shall become an
Unencumbered Pool Property that is not a Special UPP.
3.2. Termination of Designation as Unencumbered Pool Property. Borrower
may terminate the designation of a property as an Unencumbered Pool Property by
deleting such property from the list of properties identified in the
Unencumbered Pool Certificate or by requesting at any time, upon prior written
notice to Administrative Agent (which shall promptly send a copy thereof to each
other Lender), that an Unencumbered Pool Property cease to be designated as
such, which termination of designation ("Termination of Designation") shall be
consented to by Administrative Agent if all of the following conditions are
satisfied as of the date of such Termination of Designation:
3.2.1 No Unmatured Event of Default or Event of Default has occurred
and is continuing; and
3.2.2 Borrower shall have delivered to Administrative Agent an
Unencumbered Pool Certificate demonstrating on a pro forma basis, and
Administrative Agent shall have determined, that after giving effect to such
Termination of Designation and any prepayment to be made and/or the acceptance
of any property as an additional or replacement Unencumbered Pool Property to be
given concurrently with such
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Termination of Designation: (i) the outstanding principal balance of the Loans
will not exceed the Loan Availability, (ii) the aggregate Individual UPP Values
of all Special UPPs of types other than the Approved Property Types will not
exceed ten percent (10%) of the Unencumbered Pool Value, (iii) no remaining
Special UPP of a type other than the Approved Property Types will have an
Individual UPP Value in excess of five percent (5%) of the Unencumbered Pool
Value, (iv) the aggregate Individual UPP Values of all Special UPPs located
outside the Approved Markets will not exceed ten percent (10%) of the
Unencumbered Pool Value, (v) the Aggregate Occupancy Rate will not be less than
ninety percent (90%), (vi) the aggregate Individual UPP Values of the
Unencumbered Pool Properties owned by UPP Subpartnerships (whether or not such
UPP Subpartnerships are Guarantor Subpartnerships) will not exceed fifteen
percent (15%) of the Unencumbered Pool Value, (vii) the aggregate Individual UPP
Values of the Unencumbered Pool Properties owned by UPP Subpartnerships that are
not Guarantor Subpartnerships will not exceed five percent (5%) of the
Unencumbered Pool Value, and (viii) the aggregate Individual UPP Values of
ground leased Unencumbered Pool Properties (other than the Ground Leases (or
Affiliate ground leases pursuant to Section 3.1.2(a)(i), clause (y))) will not
exceed seven and one-half percent (7.5%) of the Unencumbered Pool Value.
ARTICLE IV
CONDITIONS TO LOANS
4.1. Conditions to Initial Disbursement of Loans. The obligation of
Lenders to make the initial disbursement of the Loans (which Loans shall be made
as Committed Loans) shall be subject to satisfaction of each of the following
conditions precedent on or before the Closing Date (including, in the case of
Borrower, each Guarantor Subpartnership and the REIT, a certificate of each such
entity's Secretary or an officer comparable thereto (a "Secretary's
Certificate") with respect to authorization, incumbency and all organizational
documents):
4.1.1 Borrower Documents. Borrower shall have executed and/or
delivered to Administrative Agent each of the following, in form and substance
acceptable to Administrative Agent and each other Lender (for its own use and
for transmittal to its Designated Bid Lender, if any):
(a) this Agreement;
(b) the Loan Notes;
(c) Certified copy of Borrower's Limited Partnership
Agreement, as amended;
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(d) Certified copy of Borrower's Certificate of Limited
Partnership (Form LP-1) from the California Secretary of
State; *
(e) Certificate of Status - California Limited Partnership
from the California Secretary of State; *
(f) Evidence of qualification and good standing of Borrower in
Oregon, Washington and Idaho:
(i) Certificate of Existence/Authorization of Borrower
from the Secretary of State of Washington;*
(ii) Certificate of Existence of Borrower from the
Secretary of State of Oregon;*
(iii) Master Business Application and License of Borrower
dba ▇▇▇▇▇▇▇ Properties Washington, L.P. in
Washington (showing tradename of business) (as
filed and published), issued by the Washington
Department of Licensing; and
(iv) Certificate of Corporate Status of Borrower from
the Secretary of State of Idaho;*
(g) Borrowing Certificate; and
(h) Funds Transfer Agreement (on the Administrative Agent's
standard form).
The certificates and other documents listed in Subsections 4.1.1(f)(i) through
(iv), above, shall be delivered as promptly as practicable following the Closing
Date, but no later than thirty (30) days thereafter. Borrower's failure to
deliver such certificates and documents within thirty (30) days following the
Closing Date shall be an Event of Default.
4.1.2 Guarantor Subpartnership Documents. The Guarantor
Subpartnerships shall have executed and/or delivered to Administrative Agent
each of the following, in form and substance acceptable to Administrative Agent
and each other Lender:
From Each Guarantor Subpartnership:
(a) a Guaranty;
With Respect to Each Guarantor Subpartnership:
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(b) Certified copy of such Person's agreement of limited
partnership, partnership agreement or operating agreement,
as the case may be, in each case, as amended;
(c) If such Guarantor Subpartnership is a limited partnership:
Certified copies of its Certificate of Limited Partnership
(Form LP-1) and each amendment thereto (Form LP-2), from
the Secretary of State of California;*
(d) If such Guarantor Subpartnership is a limited liability
company: Certified copies of its Articles of Organization
and each amendment thereto, from the Secretary of State of
California;*
(e) If such Guarantor Subpartnership is a limited partnership
or a limited liability company: Certificate of Status from
the Secretary of State of California;*
(f) If such Guarantor Subpartnership owns an Unencumbered Pool
Property located in any state other than California:
evidence of its qualification and good standing in such
other state:
(i) Certificate of Existence/Authorization (or its
equivalent) from the Secretary of State of such
state;* and
(ii) in the case of SP #177 Certificate of Registration
issued under prior name of SP #177,
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ #177 (showing tradename
of business), issued by the Washington Department
of Licensing, and Amended Application for
Registration of a Foreign Limited Partnership
(showing name change to SP #177), filed with the
Washington Department of Licensing;
(g) Partnership Certificate (re: authorization to execute
guaranty); and
(h) Solvency Certificate; and
With Respect to SWIP:
(i) Certified copy of SWIP's General Partnership Agreement.
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4.1.3 REIT Documents. The REIT shall have executed and/or delivered
to Administrative Agent each of the following, in form and substance acceptable
to Administrative Agent and each other Lender:
(a) a Guaranty;
(b) Articles of Incorporation, as amended, of the REIT, as
certified by the Secretary of State of Maryland;*
(c) By-laws of the REIT, as certified by the Secretary of the
REIT;
(d) Good Standing Certificate (or its equivalent) for the REIT
from the State of Maryland;*
(e) Evidence of qualification and good standing of the REIT in
California, Oregon and Washington:
(i) Certificate of Status of Foreign Corporation -
California Secretary of State;*
(ii) Letter from the California Franchise Tax Board
regarding status of the REIT in California;*
(iii) Certificate of Existence/Authorization of the REIT
from the Washington Secretary of State;*
(iv) Certificate of Existence of the REIT from the
Oregon Secretary of State;*
(v) Master Business License (showing tradename of
business) issued by the Washington Department of
Licensing; and
(vi) Letter from the Oregon Department of Revenue
regarding status of taxes paid;*
(f) Corporate resolutions of the REIT, as certified by the
Secretary of the REIT (re: authorization to engage in
partnership activity, including borrowing, and
authorization to execute guaranty);
(g) Incumbency Certificate; and
(h) Solvency Certificate.
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4.1.4 Unencumbered Pool Property Documents. Administrative Agent
shall have received all required information with respect to each Unencumbered
Pool Property in form and substance acceptable to Administrative Agent and each
other Lender.
4.1.5 Unencumbered Pool Certificate; Compliance Certificate.
Borrower shall have delivered to Administrative Agent an Unencumbered Pool
Certificate evidencing sufficient Loan Availability to support the Loans being
requested and a Compliance Certificate.
4.1.6 Notice of Borrowing. Borrower shall have delivered to
Administrative Agent a Notice of Borrowing, and, if applicable, Administrative
Agent shall have delivered to Borrower a Fixed Rate Notice, in each case in
compliance with Section 2.1.2.
4.1.7 Performance. Borrower, the REIT and each Guarantor
Subpartnership shall have performed in all material respects all agreements and
covenants required by Administrative Agent to be performed by them on or before
the Closing Date.
4.1.8 Solvency. Each of the REIT, Borrower and each Guarantor
Subpartnership shall be Solvent.
4.1.9 Material Adverse Changes. No change, as determined by
Administrative Agent and Lenders, shall have occurred, during the period
commencing December 31, 1999, and ending on the Closing Date, which has a
Material Adverse Effect on Borrower or the REIT.
4.1.10 Litigation Proceedings. There shall not have been instituted
or threatened, during the period commencing December 31, 1999, and ending on the
Closing Date, any litigation or proceeding in any court or Governmental
Authority affecting or threatening to affect Borrower, any Guarantor
Subpartnership or the REIT which has a Material Adverse Effect on Borrower or
the REIT.
4.1.11 Indefeasible Title. Borrower and the UPP Subpartnerships, as
applicable, shall have good, indefeasible and merchantable title to the
Unencumbered Pool Properties, free and clear of all Liens other than Permitted
Liens.
4.1.12 No Event of Default; Satisfaction of Financial Covenants. On
the Closing Date and after giving effect to the initial disbursements of the
Loans, no Event of Default or Unmatured Event of Default shall exist, and the
covenant contained in Section 8.5, and each of the financial covenants contained
in Article IX, shall be satisfied.
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4.1.13 Fees. Administrative Agent shall have received (i) for the
ratable account of Lenders, a loan fee in the amount separately agreed to
between Lenders and Borrower, (ii) for Administrative Agent's own account, an
arrangement fee in the amount separately agreed to between Administrative Agent
and Borrower and the initial installment of the administrative fee separately
agreed to between Administrative Agent and Borrower, and (iii) for the ratable
account of Lenders or for Administrative Agent's own account, as applicable, all
other fees (if any) then due, and Borrower shall have performed all of its other
obligations as set forth in the Loan Documents to make payments to
Administrative Agent on or before the Closing Date; and all expenses of
Administrative Agent incurred prior to such Closing Date in connection with this
Agreement (including without limitation all attorneys' fees and costs), if
requested by Administrative Agent, shall have been paid by Borrower.
4.1.14 Obligations Under Existing Facility. Administrative Agent
shall have received an amount (which may include proceeds of the initial Loan
hereunder) equal to all unpaid obligations of Borrower under the 1997 Credit
Agreement, together with instructions to apply such sum to the payment of such
obligations in full.
4.1.15 Opinion of Counsel. Administrative Agent shall have received,
on behalf of Administrative Agent and Lenders, favorable opinions of counsel
(which may, as to certain matters, be rendered by in-house counsel) for
Borrower, each Guarantor Subpartnership and the REIT dated as of the Closing
Date, in form and substance satisfactory to Administrative Agent, Lenders and
their respective counsel.
4.1.16 Consents and Approvals. All material licenses, permits,
consents, regulatory approvals and corporate or partnership action necessary to
enter into this Agreement and the other Loan Documents to which Borrower, the
REIT or any Guarantor Subpartnership is (or is to become) a party shall have
been obtained by Borrower, the REIT or such Guarantor Subpartnership, as the
case may be.
4.1.17 Accountant's Reliance Letter. Administrative Agent shall have
received an Accountant's reliance letter in customary form and in substance
satisfactory to Administrative Agent and Administrative Agent's counsel.
4.1.18 Representations and Warranties. All representations and
warranties contained in this Agreement and the other Loan Documents shall be
true and correct in all material respects.
4.2. Conditions Precedent to All Loans. The obligation of each Lender
(or, in the case of a Bid Loan, its Designated Bid Lender) to make any Loan
requested to be made by it, on any date, is subject to satisfaction of the
following conditions precedent as of such date:
4.2.1 Documents.
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(a) With respect to a request for a Committed Loan,
Administrative Agent shall have received, on or before the Funding Date
and in accordance with the provisions of Section 2.1.2, an original and
duly executed Notice of Borrowing.
(b) With respect to a Borrowing comprised of one or more Bid
Loans, a Competitive Bid Request and one or more Competitive Bids shall
have been submitted, and one or more Competitive Bids shall have been
accepted in whole or in part, all in accordance with the provisions of
Section 2.1.3.
4.2.2 Additional Matters. As of the Funding Date for any Loan and
after giving effect to the Loan(s) being requested:
(a) Representations and Warranties. All of the representations
and warranties contained in this Agreement and in any other Loan
Document (other than representations and warranties which expressly
speak only as of a different date and other than for changes permitted
or contemplated by this Agreement), and each certification,
representation or warranty of Borrower set forth in the Notice of
Borrowing or Competitive Bid Request relating to such Loan(s), shall be
true and correct in all material respects on and as of such Funding
Date, as though made on and as of such date;
(b) No Default. No Event of Default or Unmatured Event of Default
shall have occurred and be continuing or would result from the making of
the requested Loan(s), and the covenants contained in Sections 8.5 and
8.9, and each of the financial covenants contained in Article IX, shall
be satisfied; and
(c) No Material Adverse Change. Since the Closing Date, no change
shall have occurred which shall have a Material Adverse Effect on
Borrower or the REIT, as reasonably determined by Administrative Agent,
other than any such change the occurrence of which has been waived by
the Requisite Lenders in connection with any prior Borrowing.
Each submission by Borrower to Administrative Agent of a Notice of Borrowing or
a Competitive Bid Request with respect to a Loan and the acceptance by Borrower
of the proceeds of each such Loan made hereunder shall constitute a
representation and warranty by Borrower as of the Funding Date in respect of
such Loan that all the conditions contained in this Section 4.2.2 have been
satisfied.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties as to Borrower, Etc. In order to
induce Lenders and Designated Bid Lenders to make the Loans, Borrower hereby
represents and warrants to Lenders and Designated Bid Lenders as follows:
5.1.1 Organization; Partnership Powers. Borrower (i) is a limited
partnership duly organized, validly existing and in good standing under the laws
of the jurisdiction of its formation, (ii) is duly qualified to do business as a
foreign limited partnership and in good standing under the laws of each
jurisdiction in which it owns or leases real property or in which the nature of
its business requires it to be so qualified, except for those jurisdictions
where failure to so qualify and be in good standing would not have a Material
Adverse Effect on Borrower, and (iii) has all requisite partnership power and
authority to own and operate its property and assets and to conduct its business
as presently conducted and as proposed to be conducted in connection with and
following the consummation of the Loans contemplated by the Loan Documents.
5.1.2 Authority. Borrower has the requisite partnership power and
authority to execute, deliver and perform each of the Loan Documents to which it
is or will be a party. The execution, delivery and performance thereof, and the
consummation of the transactions contemplated thereby, have been duly approved
by the general partner of Borrower, and no other partnership proceedings or
authorizations on the part of Borrower or its general or limited partners are
necessary to consummate such transactions. Each of the Loan Documents to which
Borrower is a party has been duly executed and delivered by Borrower and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency and other laws
affecting creditors' rights generally.
5.1.3 Ownership of Borrower and each UPP Subpartnership;
Non-Guarantor Subsidiaries. Schedule 5.1.3A sets forth the general partners and
limited partners (or other holders of ownership interests) of Borrower and each
UPP Subpartnership and their respective ownership percentages and there are no
other partnership (or other ownership) interests outstanding. Except as set
forth or referred to in the Partnership Agreement of Borrower or any UPP
Subpartnership, no partnership (or other ownership) interest (or any securities,
instruments, warrants, option or purchase rights, conversion or exchange rights,
calls, commitments or claims of any character convertible into or exercisable
for such interests) in Borrower or any UPP Subpartnership is subject to issuance
under any security, instrument, warrant, option or purchase rights, conversion
or exchange rights, call, commitment or claim of any right, title or interest
therein or thereto. All of the partnership (or other ownership) interests in
Borrower and each UPP Subpartnership have been issued in compliance with all
applicable
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Requirements of Law. Schedule 5.1.3B sets forth all Non-Guarantor Subsidiaries
of Borrower as of the Closing Date.
5.1.4 No Conflict. The execution, delivery and performance by
Borrower of the Loan Documents to which it is or will be a party, and each of
the transactions contemplated thereby, do not and will not (i) conflict with or
violate Borrower's limited partnership agreement or certificate of limited
partnership or other organizational documents, as the case may be, or (ii)
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any Requirement of Law, Contractual
Obligation or Court Order of or binding upon Borrower, or (iii) require
termination of any Contractual Obligation, or (iv) result in or require the
creation or imposition of any Lien whatsoever upon any of the properties or
assets of Borrower, other than Permitted Liens.
5.1.5 Consents and Authorizations. Borrower has obtained all
consents and authorizations required pursuant to its Contractual Obligations
with any other Person, and shall have obtained all consents and authorizations
of, and effected all notices to and filings with, any Governmental Authority, as
may be necessary to allow Borrower to lawfully execute, deliver and perform its
obligations under the Loan Documents to which Borrower is a party.
5.1.6 Governmental Regulation. Neither Borrower, the REIT nor any
Guarantor Subpartnership is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
the Investment Company Act of 1940 or any other federal or state statute or
regulation such that its ability to incur indebtedness is limited or its ability
to consummate the transactions contemplated by the Loan Documents is materially
impaired.
5.1.7 Prior Financials. The (a) December 31, 1999 Consolidated
Balance Sheet, Statement of Operations and Statement of Cash Flows of the REIT
contained in the REIT's Form 10K (the "December 31, 1999 Financials") and (b)
June 30, 2000 Consolidated Balance Sheet, Statement of Operations and Statement
of Cash Flows of the REIT contained in the REIT's Form 10Q (in each case,
delivered to Administrative Agent prior to the date hereof) were prepared in
accordance with GAAP and fairly present the assets, liabilities and financial
condition of the REIT on a consolidated basis, at the date thereof and the
results of its operations and its cash flows, on a consolidated basis, for the
period then ended.
5.1.8 Financial Statements; Projections and Forecasts. Each of the
Financial Statements to be delivered to Administrative Agent pursuant to
Sections 6.1.2 and 6.1.3 (i) has been, or will be, as applicable, prepared in
accordance with the books and records of the REIT on a consolidated basis, and
(ii) either fairly present, or will fairly present, as applicable, the financial
condition of the REIT on a consolidated basis,
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at the dates thereof (and, if applicable, subject to normal year-end
adjustments) and the results of its operations and cash flows, on a consolidated
basis, for the period then ended. Each of the projections delivered to
Administrative Agent prior to the date hereof and the financial projections to
be delivered to Administrative Agent pursuant to Section 6.1.5 (1) has been, or
will be, as applicable, prepared by Borrower in light of the past business and
performance of Borrower on a consolidated basis and (2) represent, or will
represent, as of the date thereof, the reasonable good faith estimates of
Borrower's financial personnel.
5.1.9 Prior Operating Statements. Each of the operating statements
pertaining to each of the Unencumbered Pool Properties delivered to
Administrative Agent prior to the date hereof was prepared in accordance with
GAAP in effect on the date such operating statement of each Unencumbered Pool
Property was prepared and fairly presents the results of operations of such
Unencumbered Pool Property for the period then ended.
5.1.10 Annual Operating Reports and Projections. Each of the Annual
Operating Reports to be delivered to Administrative Agent pursuant to Section
6.1.1 (i) has been or will be, as applicable, prepared in accordance with the
books and records of the applicable Unencumbered Pool Property, and (ii) fairly
presents or will fairly present, as applicable, the results of operations of
such Unencumbered Pool Property for the period then ended. Each of the
projections, financial plans and budgets delivered to Administrative Agent prior
to the date hereof and the projections to be delivered to Administrative Agent
pursuant to Section 6.1.5 (1) has been, or will be, as applicable, prepared for
each Unencumbered Pool Property in light of the past business and performance of
such Unencumbered Pool Property and (2) represents or will represent, as of the
date thereof, the reasonable good faith estimates of the REIT's financial
personnel.
5.1.11 Litigation; Adverse Effects.
(a) There is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity, or before or by any
Governmental Authority, pending or, to the best of Borrower's knowledge,
threatened against Borrower or any Property of Borrower (including any
Unencumbered Pool Property), which (i) result in a Material Adverse
Effect on Borrower, (ii) materially and adversely affect the ability of
any party to any of the Loan Documents to perform its obligations
thereunder, or (iii) materially and adversely affect the ability of
Borrower to perform its obligations contemplated in the Loan Documents.
(b) Borrower is not (i) in violation of any applicable law, which
violation has a Material Adverse Effect on Borrower, or (ii) subject to
or in default with respect to any Court Order which has a Material
Adverse Effect on Borrower. There are no material Proceedings pending
or, to the best of Borrower's
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knowledge, threatened against Borrower or any Unencumbered Pool
Property, which, if adversely decided, would have a Material Adverse
Effect on Borrower.
5.1.12 No Material Adverse Change. Since December 31, 1999, there
has occurred no event which has a Material Adverse Effect on Borrower, and no
material adverse change in Borrower's ability to perform its obligations under
the Loan Documents to which it is a party or the transactions contemplated
thereby.
5.1.13 Payment of Taxes. All tax returns and reports to be filed by
Borrower have been timely filed, and all taxes, assessments, fees and other
governmental charges shown on such returns or otherwise payable by Borrower have
been paid when due and payable (other than real property taxes, which may be
paid prior to delinquency so long as no penalty or interest shall attach
thereto), except such taxes, if any, as are reserved against in accordance with
GAAP and are being contested in good faith by appropriate proceedings or such
taxes, the failure to make payment of which when due and payable will not have,
in the aggregate, a Material Adverse Effect on Borrower. Borrower has no
knowledge of any proposed tax assessment against Borrower that will have a
Material Adverse Effect on Borrower, which is not being actively contested in
good faith by Borrower.
5.1.14 Material Adverse Agreements. Borrower is not a party to or
subject to any Contractual Obligation or other restriction contained in its
limited partnership agreement, certificate of limited partnership or similar
governing documents which has a Material Adverse Effect on Borrower.
5.1.15 Performance. Borrower is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default under such Contractual Obligation in each case, except
where the consequences, direct or indirect, of such default or defaults, if any,
will not have a Material Adverse Effect on Borrower.
5.1.16 Federal Reserve Regulations. Neither Borrower, the REIT nor
any Guarantor Subpartnership is engaged primarily in the business of extending
credit for the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulations U and X. No part of the proceeds of any Loan hereunder
will be used for any purpose that violates, or which is inconsistent with, the
provisions of Regulations U or X or any other regulation of the Federal Reserve
Board.
5.1.17 Disclosure. The representations and warranties of Borrower
contained in the Loan Documents and all certificates, financial statements and
other documents delivered to Administrative Agent in connection therewith or
delivered to ▇▇▇▇▇ Fargo or any Original Lender in connection with the Existing
Facility, do not (or, in the case of items delivered in connection with the
Existing Facility, did not, as of the
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date so delivered) contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained herein
or therein, in light of the circumstances under which they were made, not
misleading. Borrower has given to Administrative Agent true, correct and
complete copies of all UPP Leases, organizational documents, Financial
Statements and all other documents and instruments referred to in the Loan
Documents as having been delivered to Administrative Agent.
5.1.18 Requirements of Law. Borrower, the REIT and each UPP
Subpartnership are in compliance with all Requirements of Law (including without
limitation the Securities Act and the Securities Exchange Act, and the
applicable rules and regulations thereunder, state securities law and "Blue Sky"
laws) applicable to it and its respective businesses, in each case, where the
failure to so comply will have a Material Adverse Effect on Borrower or the
REIT. The REIT has made all filings with and obtained all consents of the
Commission required under the Securities Act and the Securities Exchange Act in
connection with the execution, delivery and performance by the REIT of the Loan
Documents.
5.1.19 Patents, Trademarks, Permits, Etc. Borrower, the REIT and
each UPP Subpartnership own, are licensed or otherwise have the lawful right to
use, or have all permits and other governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how and processes used in or necessary
for the conduct of each such Person's business as currently conducted, the
absence of which would have a Material Adverse Effect upon Borrower or the REIT.
The use of such permits and other governmental approvals, patents, trademarks,
trade names, copyrights, technology, know-how and processes by each such Person
does not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liability on the
part of any such Person which would have a Material Adverse Effect on Borrower
or the REIT.
5.1.20 Environmental Matters. Except as set forth on Schedule
5.1.20, to the best of Borrower's knowledge, (i) the operations of Borrower, the
REIT and each UPP Subpartnership comply in all material respects with all
applicable local, state and federal environmental, health and safety
Requirements of Law ("Environmental Laws"); (ii) none of Borrower's or any UPP
Subpartnership's present Property or operations are subject to any Remedial
Action or other Liabilities and Costs arising from the Release or threatened
Release of a Contaminant into the environment in violation of any Environmental
Laws, which Remedial Action or other Liabilities and Costs would have a Material
Adverse Effect on Borrower or the REIT; (iii) neither Borrower, the REIT nor any
UPP Subpartnership has filed any notice under applicable Environmental Laws
reporting a Release of a Contaminant into the environment in violation of any
Environmental Laws, except as the same may have been heretofore remedied; (iv)
there is not now on or in the Property of Borrower or any UPP Subpartnership
(except in compliance in all material respects with all applicable Environmental
Laws): (A) any
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underground storage tanks, (B) any asbestos-containing material, or (C) any
polychlorinated biphenyls (PCB's) used in hydraulic oils, electrical
transformers or other equipment owned by such Person; and (v) neither Borrower,
the REIT nor any UPP Subpartnership has received any notice or claim to the
effect that it is or may be liable to any Person as a result of the Release or
threatened Release of a Contaminant into the environment.
5.1.21 Unencumbered Pool Properties. Each of the Properties listed
on Schedule 1 qualifies as an Unencumbered Property. The Aggregate Occupancy
Rate is at or above the level required to be maintained under Section 9.7. The
aggregate of the Individual UPP Values of Unencumbered Pool Properties owned by
UPP Subpartnerships (whether or not such UPP Subpartnerships are Guarantor
Subpartnerships) does not exceed fifteen percent (15%) of the Unencumbered Pool
Value; and the aggregate of the Individual UPP Values of Unencumbered Pool
Properties owned by UPP Subpartnerships that are not Guarantor Subpartnerships
does not exceed five percent (5%) of the Unencumbered Pool Value.
5.1.22 Major Agreements; UPP Leases. With respect to each
Unencumbered Pool Property for which Administrative Agent has requested copies
of Major Agreements, Administrative Agent has received true, complete and
correct copies of each Major Agreement relating thereto. All such Major
Agreements are in full force and effect, and no default or event of default (or
event or occurrence which upon with the passage of time or the giving of notice,
or both, will constitute a default or event of default) exists or will exist
under such Major Agreements as a result of the consummation of the transactions
contemplated by the Loan Documents. Except as reflected on the most current rent
rolls delivered to Administrative Agent, all UPP Leases are in full force and
effect and no default or event of default (or event or occurrence which upon
with the passage of time or the giving of notice, or both, will constitute a
default or event of default) exists or will exist thereunder as a result of the
consummation of the transactions contemplated by the Loan Documents.
5.1.23 Solvency. Borrower is and will be Solvent after giving effect
to each disbursement of the Loans and the payment and accrual of all fees then
payable.
5.1.24 Title to Assets; No Liens. Borrower has good, indefeasible
and merchantable title to all Properties owned or leased by it, including,
without limitation, any Unencumbered Pool Properties owned or leased by
Borrower, and each of the Unencumbered Pool Properties is free and clear of all
Liens, except Permitted Liens.
5.1.25 Use of Proceeds. Borrower's use of the proceeds of the Loans
are, and will continue to be, legal and proper uses (and to the extent
necessary, duly authorized by Borrower's partners) and such uses are consistent
with all applicable laws and statutes and Section 7.1.9.
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5.2. Representations and Warranties as to each UPP Subpartnership, Etc.
In order to induce Lenders and Designated Bid Lenders to make the Loans,
Borrower hereby represents and warrants to Lenders and Designated Bid Lenders as
follows:
5.2.1 Organization; Partnership Powers. Each UPP Subpartnership (i)
is a Partnership duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (ii) is duly qualified to do
business as a foreign partnership and in good standing under the laws of each
jurisdiction in which it owns or leases real property or in which the nature of
its business requires it to be so qualified, except for those jurisdictions
where failure to so qualify and be in good standing would not have a Material
Adverse Effect on Borrower or the REIT, and (iii) has all requisite power and
authority, as an entity, to own and operate its Property and assets and to
conduct its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by the Loan Documents.
5.2.2 Authority. Each Guarantor Subpartnership has the requisite
power and authority, as an entity, to execute, deliver and perform each of the
Loan Documents to which it is or will be a party. The execution, delivery and
performance thereof, and the consummation of the transactions contemplated
thereby, have been duly approved by the requisite partners of each such
Guarantor Subpartnership, and no other partnership or similar proceedings on the
part of any Guarantor Subpartnership are necessary to consummate such
transactions. The Partnership Agreement of each Guarantor Subpartnership
expressly authorizes such Guarantor Subpartnership's execution, delivery and
performance of each of the Loan Documents to which such Guarantor Subpartnership
is or is to become a party hereunder. Each of the Loan Documents to which each
Guarantor Subpartnership is a party has been duly executed and delivered by each
Guarantor Subpartnership and constitutes its legal, valid and binding
obligation, enforceable against each Guarantor Subpartnership in accordance with
its terms, subject to bankruptcy, insolvency and other laws affecting creditors'
rights generally.
5.2.3 No Conflict. The execution, delivery and performance of the
Loan Documents by each Guarantor Subpartnership, and each of the transactions
contemplated thereby, do not and will not (i) conflict with or violate such
Guarantor Subpartnership's Partnership Agreement, (ii) conflict with, result in
a breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law, Contractual Obligation or Court Order of
any Guarantor Subpartnership, (iii) require termination of any Contractual
Obligation, or (iv) result in or require the creation or imposition of any Lien
whatsoever upon any of the properties or assets of any Guarantor Subpartnership
(other than Permitted Liens), or (iii) require any approval of any holders of
any ownership interest in any Guarantor Subpartnership which has not been
obtained.
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5.2.4 Consents and Authorizations. Each Guarantor Subpartnership has
obtained all consents and authorizations required pursuant to its Contractual
Obligations with any other Person, and shall have obtained all consents and
authorizations of, and effected all notices to and filings with, any
Governmental Authority, as may be necessary to allow such Guarantor
Subpartnership to lawfully execute, deliver and perform its obligations under
the Loan Documents to which such Guarantor Subpartnership is a party.
5.2.5 Litigation; Adverse Effects.
(a) There is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity, or before or by any
Governmental Authority, pending or, to the best of Borrower's knowledge,
threatened against any UPP Subpartnership or any Property of any UPP
Subpartnership which would (i) result in a Material Adverse Effect on
Borrower or the REIT, (ii) materially and adversely affect the ability
of any party to any of the Loan Documents to perform its obligations
thereunder, or (iii) materially and adversely affect the ability of any
Guarantor Subpartnership to perform its obligations as contemplated in
the Loan Documents.
(b) No UPP Subpartnership is (i) in violation of any applicable
law, which violation has a Material Adverse Effect on such UPP
Subpartnership, or (ii) subject to or in default with respect to any
Court Order which has a Material Adverse Effect on such UPP
Subpartnership. There are no material Proceedings pending or, to the
best of Borrower's knowledge, threatened against any UPP Subpartnership
which, if adversely decided, would have a Material Adverse Effect on any
UPP Subpartnership.
5.2.6 Payment of Taxes. All tax returns and reports to be filed by
any UPP Subpartnership have been timely filed, and all taxes, assessments, fees
and other governmental charges shown on such returns or otherwise payable by
such Guarantor Partnership have been paid when due and payable (other than real
property taxes, which may be paid prior to delinquency so long as no penalty or
interest shall attach thereto), except such taxes, if any, as are reserved
against in accordance with GAAP and are being contested in good faith by
appropriate proceedings or such taxes, the failure to make payment of which when
due and payable would not have, in the aggregate, a Material Adverse Effect on
any UPP Subpartnership. Borrower has no knowledge of any proposed tax assessment
against any UPP Subpartnership that would have a Material Adverse Effect on any
UPP Subpartnership, which is not being actively contested in good faith by such
UPP Subpartnership.
5.2.7 Performance. No UPP Subpartnership is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions
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contained in any Contractual Obligation applicable to it, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default under such Contractual Obligation in each case, except
where the consequences, direct or indirect, of such default or defaults, if any,
would not have a Material Adverse Effect on Borrower or the REIT.
5.2.8 Disclosure. The representations and warranties of each
Guarantor Subpartnership contained in the Loan Documents, and all certificates,
financial statements and other documents delivered to Administrative Agent in
connection therewith or delivered to ▇▇▇▇▇ Fargo or any Original Lender in
connection with the Existing Facility (or, in the case of items delivered in
connection with the Existing Facility, did not, as of the date so delivered), do
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading.
5.2.9 Solvency. Each Guarantor Subpartnership is and will be
Solvent, in each case after giving effect to each disbursement of the Loans, and
the payment and accrual of all fees then payable.
5.2.10 Title to Assets; No Liens. Each UPP Subpartnership has good,
indefeasible and merchantable title to the Properties owned or leased by it and
each of the Unencumbered Pool Properties owned by any UPP Subpartnership is free
and clear of all Liens, except Permitted Liens.
5.2.11 Limited Purpose. Each UPP Subpartnership is and will continue
to be engaged only in the business of owning, operating and developing one or
more Unencumbered Pool Properties. No UPP Subpartnership owns or has any
interest in any Person. The sole partners and beneficial owners of each
Guarantor Subpartnership are and will continue to be, directly or indirectly,
Borrower and the REIT and, with respect to no more than ten percent (10%) of the
equity interests in such Guarantor Subpartnership outstanding at any time, one
or more Third Party Partners. The sole partners and beneficial owners of each
UPP Subpartnership other than a Guarantor Subpartnership are and will continue
to be, directly or indirectly, Borrower and the REIT and, with respect to no
more than forty-nine percent (49%) of the equity interests in such UPP
Subpartnership outstanding at any time, one or more Third Party Partners.
5.3. Representations and Warranties as to the REIT. In order to induce
Lenders and Designated Bid Lenders to make the Loans, Borrower hereby represents
and warrants to Lenders and Designated Bid Lenders as follows:
5.3.1 Organization; Corporate Powers. The REIT (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Maryland, (ii) is duly qualified to do business as a foreign
corporation and in good standing under
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the laws of each jurisdiction in which it owns or leases real property or in
which the nature of its business requires it to be so qualified, except for
those jurisdictions where failure to so qualify and be in good standing will not
have a Material Adverse Effect on the REIT, and (iii) has all requisite
corporate power and authority to own and operate its property and assets and to
conduct its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by the Loan Documents.
5.3.2 Authority. The REIT has the requisite corporate power and
authority to execute, deliver and perform each of the Loan Documents to which it
is or will be a party. The execution, delivery and performance thereof, and the
consummation of the transactions contemplated thereby, have been duly approved
by the Board of Directors of the REIT, and no other corporate proceedings on the
part of the REIT are necessary to consummate such transactions. Each of the Loan
Documents to which the REIT is a party has been duly executed and delivered by
Borrower and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency and
other laws affecting creditors' rights generally.
5.3.3 No Conflict. The execution, delivery and performance by the
REIT of the Loan Documents to which it is party, and each of the transactions
contemplated thereby, do not and will not (i) conflict with or violate its
articles of incorporation, by-laws or other organizational documents, (ii)
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any Requirement of Law, Contractual
Obligation or Court Order of the REIT, (iii) require termination of any
Contractual Obligation, (iv) result in or require the creation or imposition of
any Lien whatsoever upon any of the properties or assets of the REIT, or (v)
require any approval of the stockholders of the REIT.
5.3.4 Consents and Authorizations. The REIT has obtained all
consents and authorizations required pursuant to its Contractual Obligations
with any other Person, and shall have obtained all consents and authorizations
of, and effected all notices to and filings with, any Governmental Authority, as
may be necessary to allow the REIT to lawfully execute, deliver and perform its
obligations under the Loan Documents to which the REIT is a party.
5.3.5 Capitalization. All of the capital stock of the REIT has been
issued in compliance, in all material respects, with all applicable Requirements
of Law.
5.3.6 Litigation; Adverse Effects.
(a) There is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity, or before or by any
Governmental Authority, pending or, to best of Borrower's knowledge,
threatened against the REIT or any Property of the REIT, which will (i)
result in a Material Adverse Effect on the
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REIT, (ii) materially and adversely affect the ability of any party to
any of the Loan Documents to perform its obligations thereunder, or
(iii) materially and adversely affect the ability of the REIT to perform
its obligations as contemplated in the Loan Documents.
(b) The REIT is not (i) in violation of any applicable law, which
violation has a Material Adverse Effect on the REIT, or (ii) subject to
or in default with respect to any Court Order which has a Material
Adverse Effect on the REIT. There are no Proceedings pending or, to the
best of Borrower's knowledge, threatened against the REIT, which, if
adversely decided, would have a Material Adverse Effect on the REIT or
Borrower.
5.3.7 No Material Adverse Change. Since December 31, 1999, there has
occurred no event which has a Material Adverse Effect on the REIT, and no
material adverse change in the REIT's ability to perform its obligations under
the Loan Documents to which it is a party or the transactions contemplated
thereby.
5.3.8 Payment of Taxes. All tax returns and reports to be filed by
the REIT have been timely filed, and all taxes, assessments, fees and other
governmental charges shown on such returns have been paid when due and payable,
except such taxes, if any, as are reserved against in accordance with GAAP and
are being contested in good faith by appropriate proceedings or such taxes, the
failure to make payment of which when due and payable would not have, in the
aggregate, a Material Adverse Effect on the REIT. The REIT has no knowledge of
any proposed tax assessment against the REIT that would have a Material Adverse
Effect on the REIT, which is not being actively contested in good faith by the
REIT.
5.3.9 Material Adverse Agreements. The REIT is not a party to or
subject to any Contractual Obligation or other restriction contained in its
charter, by-laws or similar governing documents which has a Material Adverse
Effect on the REIT or the ability of the REIT to perform its obligations under
the Loan Documents to which it is a party.
5.3.10 Performance. The REIT is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any Contractual Obligation applicable to it, and no condition
exists which, with the giving of notice or the lapse of time or both, would
constitute a default under such Contractual Obligation in each case, except
where the consequences, direct or indirect, of such default or defaults, if any,
would not have a Material Adverse Effect on the REIT.
5.3.11 Disclosure. The representations and warranties of the REIT
contained in the Loan Documents, and all certificates, financial statements and
other documents delivered to Administrative Agent in connection therewith or
delivered to ▇▇▇▇▇ Fargo or any Original Lender in connection with the Existing
Facility (or, in the
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case of items delivered in connection with the Existing Facility, did not, as of
the date so delivered), do not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading.
5.3.12 ERISA. Neither the REIT nor any ERISA Affiliate thereof
(including, for all purposes under this Section 5.3.12, Borrower and each
Guarantor Partnership) has incurred any liability, with respect to any Benefit
Plan of the REIT or any ERISA Affiliate of the REIT, which would have a Material
Adverse Effect on Borrower or the REIT. Neither the REIT nor any ERISA Affiliate
thereof has during the past six (6) years maintained or contributed to, or
currently maintains or contributes to, any employee welfare benefit plan within
the meaning of Section 3(1) of ERISA which provides benefits to retirees, the
obligations with respect to which would have a Material Adverse Effect on
Borrower or the REIT. Neither the REIT nor any ERISA Affiliate thereof is now
contributing to, nor has it ever contributed to or been obligated to contribute
to, any Multiemployer Plan, and neither the REIT nor any ERISA Affiliate of the
REIT has or is likely to incur any withdrawal liability with respect to any
Multiemployer Plan which would have a Material Adverse Effect on Borrower or the
REIT.
5.3.13 Solvency. The REIT is and will be Solvent, in each case after
giving effect to each disbursement of the Loans, and the payment and accrual of
all fees then payable.
5.3.14 Status as a REIT. The REIT (i) is a real estate investment
trust as defined in Section 856 of the Internal Revenue Code (or any successor
provision thereto), (ii) has not revoked its election to be a real estate
investment trust, (iii) has not engaged in any "prohibited transactions" as
defined in Section 856(b)(6)(iii) of the Internal Revenue Code (or any successor
provision thereto), and (iv) for its current "tax year" (as defined in the
Internal Revenue Code) is and for all prior tax years subsequent to its election
to be a real estate investment trust has been entitled to a dividends paid
deduction which meets the requirements of Section 857 of the Internal Revenue
Code.
5.3.15 Ownership. The REIT does not own or have any interest in any
other Person, other than its general partnership interests in Borrower and SWIP.
5.3.16 NYSE/AMEX Listing. The common stock of the REIT is and will
continue to be listed for trading and traded on either the New York Stock
Exchange or the American Stock Exchange.
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ARTICLE VI
REPORTING COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitments and termination of this Agreement:
6.1. Financial Statements and Other Financial and Operating Information.
Borrower shall maintain or cause to be maintained a system of accounting
established and administered in accordance with sound business practices and
consistent with past practice to permit preparation of quarterly and annual
financial statements in conformity with GAAP, and each of the financial
statements described below shall be prepared on a consolidated basis for the
REIT from such system and records. Borrower shall deliver or cause to be
delivered to Administrative Agent (with copies sufficient for each Lender):
6.1.1 Annual Operating Reports; Other UPP Reports.
(a) As soon as practicable, and in any event within ninety (90)
days after the end of each Fiscal Year, operating statements, in the
form of Exhibit C or other form approved by Administrative Agent, for
the Unencumbered Pool Properties (the "Annual Operating Reports"), in
form and substance satisfactory to Administrative Agent and certified by
the REIT's chief financial officer.
(b) If requested by Administrative Agent, rent rolls (on
Borrower's detailed form of rent roll) for any or all of the
Unencumbered Pool Properties, dated within sixty (60) days prior to the
date of Administrative Agent's request, in form and substance
satisfactory to Administrative Agent and certified by the REIT's chief
financial officer.
6.1.2 Quarterly Financial Statements Certified by CFO. As soon as
practicable, and in any event within fifty (50) days after the end of each
Fiscal Quarter: (i) consolidated balance sheets, statements of operations and
statements of cash flow for the REIT ("Financial Statements"), which may, in the
case of the first three Fiscal Quarters, be in the form provided to the
Commission on the REIT's Form 10Q, and certified by the REIT's chief financial
officer; and (ii) a copy of the Borrower's Form 10Q, in the form provided to the
Commission, and certified by the REIT's chief financial officer.
6.1.3 Annual Financial Statements. Within one hundred (100) days
after the close of each Fiscal Year: (i) (A) annual Financial Statements of the
REIT, on a consolidated basis (in the form provided to the Commission on the
REIT's Form 10K), audited and certified without qualification by the
Accountants; and (B) a copy of the Borrower's Form 10K, in the form provided to
the Commission, audited and certified
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without qualification by the Accountants; accompanied by (ii) a statement that,
in the course of their audit (conducted in accordance with generally accepted
auditing standards), the Accountants obtained no knowledge that an Event of
Default or Unmatured Event of Default occurred, and (iii) to the extent
customarily provided by the Accountants, a copy of a letter from the Accountants
to Borrower acknowledging that (A) Borrower intends to deliver such Financial
Statements and auditor's report to Lenders and Designated Bid Lenders, (B)
Lenders and Designated Bid Lenders intend to rely thereon, and (C) Borrower
intends for Lenders and Designated Bid Lenders to so rely, in substantially the
form delivered prior to the Closing Date. To the extent Administrative Agent
desires additional details or supporting information with respect to Majority
Partnerships, Investment Partnerships or individual Properties owned or leased
by Borrower, any Subsidiary of Borrower or any Investment Partnership (other
than Unencumbered Pool Properties) not contained in the REIT's or Borrower's
Form 10K, Borrower shall provide Administrative Agent with such details or
supporting information as Administrative Agent requests which is reasonably
available to Borrower. Without limiting the foregoing, within one hundred (100)
days after the end of each Fiscal Year, Borrower shall provide to Administrative
Agent operating statements and a schedule setting forth the percentage of
leasable area leased to tenants in occupancy, with footnotes indicating which
leases are in default in rent payments by more than forty-five (45) days (other
than technical, nonmaterial disputes concerning percentage rentals due) any
other material provisions in respect of which the landlord has issued a notice
of default, for each Property owned or leased by Borrower, any Subsidiary of
Borrower or any Investment Partnership which is not an Unencumbered Pool
Property.
6.1.4 Officer's Certificate of Borrower. (i) Together with each
delivery of any Financial Statement pursuant to Sections 6.1.2 and 6.1.3, (A) an
Officer's Certificate of the REIT, stating that the executive officer who is the
signatory thereto (which officer shall be the chief executive officer, the chief
operating officer or the chief financial officer of the REIT) has reviewed, or
caused under his supervision to be reviewed, the terms of this Agreement and the
other principal Loan Documents, and has made, or caused to be made under his
supervision, a review in reasonable detail of the transactions and condition of
Borrower, the REIT and each UPP Subpartnership, during the accounting period
covered by such Financial Statements, and that such review has not disclosed the
existence during or at the end of such accounting period, and that the signers
do not have knowledge of the existence as of the date of the Officer's
Certificate, of any condition or event which constitutes an Event of Default or
Unmatured Event of Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what action
has been taken, is being taken and is proposed to be taken with respect thereto;
and (B) a Compliance Certificate demonstrating in reasonable detail (which
detail shall include actual calculation and supporting information) compliance
during and at the end of such accounting periods with the covenant contained in
Section 8.5 and each of the financial covenants contained in Article IX.
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6.1.5 Cash Flow Projections. Within one hundred (100) days after the
end of each Fiscal Year, projections of Borrower, on a consolidated basis,
detailing expected sources and uses of cash for the next Fiscal Year. Borrower
shall also provide such additional supporting details as Administrative Agent
may reasonably request.
6.1.6 Unencumbered Pool Certificate. As soon as practicable, and in
any event within fifty (50) days after the end of each Fiscal Quarter (and more
often if so requested by Administrative Agent), a certificate in substantially
the form of Exhibit B, certified as being true and correct by the REIT's chief
executive officer, chief operating officer or chief financial officer (the
"Unencumbered Pool Certificate"). Each Unencumbered Pool Certificate shall,
among other things, confirm that all UPP Eligibility Criteria continue to be
satisfied with respect to the Unencumbered Pool Properties and set forth
calculations of Loan Availability as of the end of such Fiscal Quarter.
6.1.7 Knowledge of Event of Default. Promptly upon Borrower
obtaining knowledge (i) of any condition or event which constitutes an Event of
Default or Unmatured Event of Default, or becoming aware that any Lender (on its
own account or in its capacity as administrative agent for its Designated Bid
Lender) has given notice or taken any other action with respect to a claimed
Event of Default or Unmatured Event of Default or (ii) of any condition or event
which has a Material Adverse Effect on Borrower or the REIT, an Officer's
Certificate specifying the nature and period of existence of any such condition
or event, or specifying the notice given or action taken by such Lender and the
nature of such claimed Event of Default, Unmatured Event of Default, event or
condition, and what action Borrower or the REIT has taken, is taking and
proposes to take with respect thereto.
6.1.8 Litigation, Arbitration or Government Investigation. Promptly
upon Borrower, any UPP Subpartnership or the REIT obtaining knowledge of the
institution of, or written threat of, any material action, suit, proceeding,
governmental investigation or arbitration against or affecting Borrower, any UPP
Subpartnership or the REIT not previously disclosed in writing by Borrower to
Administrative Agent pursuant to this Section 6.1.8, including any eminent
domain or other condemnation proceedings affecting any Unencumbered Pool
Property.
6.1.9 ERISA Termination Event. As soon as possible, and in any event
within thirty (30) days after Borrower, any UPP Subpartnership or the REIT knows
or has reason to know that a Termination Event has occurred that is reasonably
likely to cause a material liability to Borrower or the REIT, a written
statement of the chief financial officer of the REIT describing such Termination
Event and the action, if any, which Borrower, any UPP Subpartnership, the REIT
or any ERISA Affiliate of any of them has taken, is taking or proposes to take,
with respect thereto, and, when known, any action taken or threatened by the
IRS, the DOL or the PBGC with respect thereto.
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6.1.10 Prohibited ERISA Transaction. As soon as possible, and in any
event within thirty (30) days, after Borrower, any UPP Subpartnership, the REIT
or any ERISA Affiliate of any of them knows or has reason to know that a
prohibited transaction (defined in Section 406 of ERISA and Section 4975 of the
Internal Revenue Code) has occurred that is reasonably likely to cause a
material liability to Borrower or the REIT, a statement of the chief financial
officer of the REIT describing such transaction.
6.1.11 Benefit Plan Annual Report. Within ten (10) days after
Administrative Agent's request thereof (or, if not then readily available to
Borrower, as soon thereafter as reasonably practicable), copies of each annual
report, including Schedule B thereto, filed with respect to each Benefit Plan of
Borrower, any UPP Subpartnership, the REIT or any ERISA Affiliate of any of them
with the DOL, the IRS or the PBGC.
6.1.12 Benefit Plan Funding Waiver Request. Within thirty (30) days
after the filing thereof with the IRS, a copy of each funding waiver request
filed with respect to any Benefit Plan of Borrower, any UPP Subpartnership, the
REIT or any ERISA Affiliate of any of them and all communications received by
Borrower, any UPP Subpartnership, the REIT or any ERISA Affiliate of any of them
with respect to such request.
6.1.13 [Intentionally Omitted.]
6.1.14 Qualification of ERISA Plan. Promptly upon, and in any event
within thirty (30) days after, receipt by Borrower, any UPP Subpartnership, the
REIT or any ERISA Affiliate of any of them of an unfavorable determination
letter from the IRS regarding the qualification of a Plan under Section 401(a)
of the Internal Revenue Code, a copy of said determination letter, if such
disqualification would have a Material Adverse Effect on Borrower, any UPP
Subpartnership or the REIT.
6.1.15 Multiemployer Plan Withdrawal Liability. Promptly upon, and
in any event within thirty (30) days after receipt by Borrower, any UPP
Subpartnership, the REIT or any ERISA Affiliate of any of them of a notice from
a Multiemployer Plan regarding the imposition of withdrawal liability, a copy of
said notice.
6.1.16 Failure to Make Section 412 Payment. Promptly upon, and in
any event within thirty (30) days after, Borrower, any UPP Subpartnership, the
REIT or any ERISA Affiliate of any of them fails to make a required installment
under subsection (m) of Section 412 of the Internal Revenue Code or any other
payment required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or payment, a notification of such failure, if
such failure could result in either the imposition of a Lien under said Section
412 or otherwise have or could reasonably be anticipated to have a Material
Adverse Effect on Borrower, any UPP Subpartnership or the REIT.
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6.1.17 Failure of the REIT to Qualify as Real Estate Investment
Trust. Promptly upon, and in any event within forty-eight (48) hours after
Borrower first has actual knowledge of (i) the REIT failing to continue to
qualify as a real estate investment trust as defined in Section 856 of the
Internal Revenue Code (or any successor provision thereof), (ii) any act by the
REIT causing its election to be taxed as a real estate investment trust to be
terminated, (iii) any act causing the REIT to be subject to the taxes imposed by
Section 857(b)(6) of the Internal Revenue Code (or any successor provision
thereto), or (iv) the REIT failing to be entitled to a dividends paid deduction
which meets the requirements of Section 857 of the Internal Revenue Code, a
notice of any such occurrence or circumstance.
6.1.18 Asset Acquisitions and Dispositions, Indebtedness, Etc.
Without limiting Article VIII or any other restriction in the Loan Documents,
concurrent with notice to Borrower's priority mailing list and in all events not
later than public disclosure of any material Investments (other than in Cash
Equivalents), material acquisitions, dispositions, disposals, divestitures or
similar transactions involving Property, the raising of additional equity or the
incurring or repayment of material Indebtedness (each a "Material Transaction"),
by or with Borrower, any UPP Subpartnership or the REIT, telephonic or facsimile
notice thereof to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or such other person(s) as Administrative
Agent may designate from time to time, and, promptly upon consummation of each
Material Transaction, a Compliance Certificate demonstrating in reasonable
detail (which detail shall include actual calculations) compliance, after giving
effect to such proposed transaction(s), with the covenants contained in Sections
8.5, 8.9 and Article IX.
Notwithstanding the foregoing, in the event that any Material
Transaction will increase the value of Borrower's assets (calculated before
accumulated depreciation) by thirty-five percent (35%) or more as of the closing
of such Material Transaction, Borrower shall, prior to the consummation of such
Material Transaction, provide Administrative Agent with written notice thereof
and a Compliance Certificate demonstrating in reasonable detail (which detail
shall include actual calculations) compliance, after giving effect to the
proposed Material Transaction, with the covenants contained in Section 8.5 and
Article IX.
6.1.19 Total Liabilities to Gross Asset Value Ratio. Promptly upon
each occasion on which the Total Liabilities to Gross Asset Value Ratio, having
been below 0.55:1 for any period of time, first exceeds 0.55:1, notice thereof,
and, within fifteen (15) days after the end of each calendar month (commencing
with the month during, or as of the end of which, such occasion occurs and
continuing to and including the calendar month the end of which is at least
thirty (30) days after the Total Liabilities to Gross Asset Value Ratio no
longer exceeds 0.55:1), an Officer's Certificate reporting, and certifying as to
the accuracy of, the Total Liabilities to Gross Asset Value Ratio as of the last
day of such calendar month.
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6.1.20 Other Information. Such other information, reports,
contracts, schedules, lists, documents, agreements and instruments in the
possession of the REIT, Borrower or a UPP Subpartnership with respect to (i) the
Unencumbered Pool Properties, (ii) any material change in the REIT's investment,
finance or operating policies, or (iii) Borrower's, any UPP Subpartnership's or
the REIT's business, condition (financial or otherwise), operations,
performance, properties or prospects as Administrative Agent may from time to
time reasonably request, including, without limitation, annual information with
respect to cash flow projections, budgets, operating statements (current year
and immediately preceding year), rent rolls, lease expiration reports, leasing
status reports, note payable summaries, bullet note summaries, equity funding
requirements, contingent liability summaries, line of credit summaries, line of
credit collateral summaries, wrap note or note receivable summaries, schedules
of outstanding letters of credit, summaries of cash and Cash Equivalents,
projections of management and leasing fees and overhead budgets. Provided that
Administrative Agent gives Borrower reasonable prior notice and an opportunity
to participate, Borrower hereby authorizes Administrative Agent to communicate
with the Accountants and authorizes the Accountants to disclose to
Administrative Agent any and all financial statements and other information of
any kind, including copies of any management letter or the substance of any oral
information, that such accountants may have with respect to Borrower's, any UPP
Subpartnership's or the REIT's condition (financial or otherwise), operations,
properties, performance and prospects. Concurrently therewith, Administrative
Agent will notify Borrower of any such communication. At Administrative Agent's
request, Borrower shall deliver a letter addressed to the Accountants
instructing them to disclose such information in compliance with this Section
6.1.20.
6.1.21 Press Releases; SEC Filings and Financial Statements.
Telephonic or telecopy notice to Administrative Agent concurrent with or prior
to issuance of any material press release concerning the REIT or Borrower and,
as soon as practicable after filing with the Commission, all reports and
notices, proxy statements, registration statements and prospectuses of the REIT.
All materials sent or made available generally by the REIT to the holders of its
publicly-held Securities or to a trustee under any indenture or filed with the
Commission, including all periodic reports required to be filed with the
Commission, will be delivered to Administrative Agent as soon as available.
6.1.22 Accountant Reports. Copies of all material reports prepared
by the Accountants and submitted to Borrower or the REIT in connection with each
annual, interim or special audit or review of the financial statements or
practices of Borrower or the REIT, including the management letter submitted by
the Accountants in connection with their annual audit.
6.1.23 Termination or Modification of Earthquake Coverage. Promptly
upon, and in any event within thirty (30) days after Borrower first has
knowledge of the
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termination or modification (with respect to the amount of either the coverage
provided or the applicable deductible) of the coverage provided by the blanket
property insurance rider regarding earthquake insurance for Properties located
in "Zone 1" maintained by Borrower as of the date of this Agreement, a notice of
such termination or modification.
6.2. Environmental Notices. Borrower shall notify Administrative Agent,
in writing, as soon as practicable, and in any event within ten (10) days after
Borrower's, any UPP Subpartnership's or the REIT's learning thereof, of any: (i)
written notice or claim to the effect that Borrower, any UPP Subpartnership or
the REIT is or may be liable to any Person as a result of any material Release
or threatened Release of any Contaminant into the environment; (ii) with respect
to any Unencumbered Pool Property, written notice that Borrower, any UPP
Subpartnership or the REIT is subject to investigation by any Governmental
Authority evaluating whether any material Remedial Action is needed to respond
to the Release or threatened Release of any Contaminant into the environment;
(iii) written notice that any Property is subject to an Environmental Lien; (iv)
written notice of violation to Borrower, any UPP Subpartnership or the REIT (or
awareness of a condition which could reasonably be expected to result in a
notice of violation) of any Environmental Laws by Borrower, any UPP
Subpartnership or the REIT, if such violation has a Material Adverse Effect on
Borrower or the REIT; (v) commencement or written threat of any judicial or
administrative proceeding alleging a violation of any Environmental Laws with
respect to any Unencumbered Pool Property that is reasonably likely to have a
material adverse effect on such property; or (vi) written notice from a
Governmental Authority of any changes to any existing Environmental Laws that
will have a Material Adverse Effect on the operations of Borrower or the REIT.
With regard to the matters referred to in clauses (i) through (v) above, the
same shall apply in respect of each Unencumbered Pool Property and, in the case
of other Property of Borrower, any UPP Subpartnership or the REIT, only if the
matter will have a Material Adverse Effect on Borrower or the REIT.
6.3. Confidentiality. Confidential Information obtained by
Administrative Agent, any Lender or any Designated Bid Lender pursuant to this
Agreement or in connection with the Committed Facility or the Bid Loan Facility
shall not be disseminated by Administrative Agent, Lenders or Designated Bid
Lenders, and shall not be disclosed to third parties except to regulators,
taxing authorities and other governmental agencies having jurisdiction over
Administrative Agent or such Lender or Designated Bid Lender or otherwise in
response to Requirements of Law, to their respective auditors and legal counsel
and in connection with regulatory, administrative and judicial proceedings as
necessary or relevant including enforcement proceedings relating to the Loan
Documents, and to any prospective permitted pledgee or assignee of or
participant in a Lender's or Designated Bid Lender's interest under this
Agreement or any prospective purchaser of the assets or a controlling interest
in any Lender or Designated Bid Lender, provided that such prospective assignee,
participant or purchaser first agrees to be bound by the provisions of this
Section 6.3. In connection with
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disclosures of Confidential Information to any non-governmental third-party, the
Lender(s) or Designated Bid Lender(s) from whom the same has been requested
shall, to the extent feasible and permitted, give prior notice of such request
to Borrower; however, neither Administrative Agent nor any such Lender or
Designated Bid Lender shall incur any liability to Borrower for failure to do
so. For purposes hereof, "Confidential Information" shall mean all nonpublic
information obtained by Administrative Agent, any Lender or any Designated Bid
Lender, unless and until such information becomes publicly known, other than as
a result of unauthorized disclosure by Administrative Agent, any Lender or any
Designated Bid Lender of such information.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitments and termination of this Agreement:
7.1. With Respect to Borrower:
7.1.1 Existence. Borrower shall at all times maintain its existence
as a limited partnership and preserve and keep in full force and effect its
rights and franchises unless the failure to maintain such rights and franchises
does not have a Material Adverse Effect on Borrower.
7.1.2 Qualification. Borrower shall qualify and remain qualified to
do business in each jurisdiction in which the nature of its business requires it
to be so qualified except for those jurisdictions where failure to so qualify
does not have a Material Adverse Effect on Borrower.
7.1.3 Compliance with Laws, Etc. Borrower shall (i) comply with all
Requirements of Law, and all restrictive covenants affecting Borrower or the
properties, performance, prospects, assets or operations of Borrower, and (ii)
obtain as needed all Permits necessary for its operations and maintain such in
good standing, except in each of the foregoing cases where the failure to do so
will not have a Material Adverse Effect on Borrower.
7.1.4 Payment of Taxes and Claims. Borrower shall pay (i) all taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
property before any penalty or interest accrues thereon, the failure to make
payment of which will have a Material Adverse Effect on Borrower, and (ii)
except to the extent being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established, to the extent required
by GAAP, all claims (including, without limitation,
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claims for labor, services, materials and supplies) for sums, material in the
aggregate to Borrower, which have become due and payable and which by law have
or may become a Lien other than a judgment lien upon any of Borrower's
properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto.
7.1.5 Maintenance of Properties; Insurance. Borrower shall maintain
in good repair, working order and condition, excepting ordinary wear and tear,
all of its Properties and will make or cause to be made all appropriate repairs,
renewals and replacements thereof. Borrower shall maintain commercially
reasonable and appropriate amounts of fire and extended coverage and liability
insurance, which insurance shall include in any event:
(a) with respect to each Property: (i) property and casualty
insurance (including coverage for flood and water damage for any
Property located within a 100-year flood plain) in an amount not less
than the replacement costs of the improvements thereon, and (ii) loss of
rental insurance income in an amount not less than one year's gross
revenues of such Property; and
(b) comprehensive general liability insurance in an amount not
less than $20,000,000 per occurrence.
At the request of Administrative Agent, Borrower shall provide, as to each
Unencumbered Pool Property evidence of insurance, including certificates of
insurance and binders.
7.1.6 Inspection of Property; Books and Records; Discussions.
Borrower shall permit, and shall cause the REIT and each UPP Subpartnership to
permit, any authorized representative(s) designated by any Lender (for its own
account or on behalf of, and as administrative agent for, its Designated Bid
Lender) to visit and inspect any of its properties, to inspect financial and
accounting records and leases, and to make copies and take extracts therefrom,
all upon reasonable notice and at such times during normal business hours and as
often as any Lender (for its own account or on behalf of, and as administrative
agent for, its Designated Bid Lender) may reasonably request. In connection
therewith, Borrower shall pay all expenses of the types described in Section
12.1. Borrower will keep proper books of record and account in which entries, in
conformity with GAAP and as otherwise required by this Agreement and applicable
Requirements of Law, shall be made of all dealings and transactions in relation
to its businesses and activities and as otherwise required under Section 6.1.
7.1.7 Maintenance of Permits, Etc. Borrower will maintain in full
force and effect all Permits, franchises, patents, trademarks, trade names,
copyrights, authorizations or other rights necessary for the operation of its
business, except where the failure to obtain any of the foregoing would not have
a Material Adverse Effect on Borrower; and notify Administrative Agent in
writing, promptly after learning thereof, of
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the suspension, cancellation, revocation or discontinuance of or of any pending
or threatened action or proceeding seeking to suspend, cancel, revoke or
discontinue any material Permit, patent, trademark, trade name, copyright,
governmental approval, franchise authorization or right.
7.1.8 Conduct of Business. Except for Permitted Investments pursuant
to Section 9.9 (including, subject to the limitations of Section 9.9,
Investments in UPP Subpartnerships), Investments in cash and Cash Equivalents,
and Investments in Permitted UPP Secured Debt, Borrower shall limit its
principal business to the ownership, operation and development of industrial,
warehouse, office or research and development properties of the general type
owned by Borrower as of the Closing Date in California, Washington, Oregon,
Idaho and Nevada, and any other business activities of Borrower will remain
incidental thereto.
7.1.9 Use of Proceeds. Borrower shall use the proceeds of the Loans
only for pre-development costs, development costs, acquisitions, capital
expenditures, working capital and general corporate purposes, equity Investments
and repayment of Indebtedness (including Indebtedness under the 1997 Credit
Agreement), including required interest and/or principal payments thereon.
7.2. With Respect to UPP Subpartnerships:
7.2.1 Existence. Borrower will cause each UPP Subpartnership at all
times to maintain its existence as a Partnership and preserve and keep in full
force and effect its rights and franchises unless the failure to maintain such
rights and franchises would not have a Material Adverse Effect on Borrower.
Borrower will cause each UPP Subpartnership to be owned and continue to be
owned, directly or indirectly, only by Borrower and the REIT and one or more
transferor(s) of property to such UPP Subpartnership, as hereinabove more
specifically referred to.
7.2.2 Qualification. Borrower will cause each UPP Subpartnership to
qualify and remain qualified to do business in each jurisdiction in which the
nature of its business requires it to be so qualified except for those
jurisdictions where failure to so qualify does not have a Material Adverse
Effect on Borrower.
7.2.3 Compliance with Laws, Etc. Borrower will cause each UPP
Subpartnership to (i) comply with all Requirements of Law, and all restrictive
covenants affecting such UPP Subpartnership or the properties, performance,
prospects, assets or operations of such UPP Subpartnership, and (ii) obtain as
needed all Permits necessary for its operations and maintain such in good
standing, except in each of the foregoing cases where the failure to do so will
not have a Material Adverse Effect on Borrower.
7.2.4 Payment of Taxes and Claims. Borrower will cause each UPP
Subpartnership shall pay (i) all taxes, assessments and other governmental
charges
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imposed upon it or on any of its properties or assets or in respect of any of
its franchises, business, income or property before any penalty or interest
accrues thereon, the failure to make payment of which will have a Material
Adverse Effect on Borrower, and (ii) except to the extent being contested in
good faith by appropriate proceedings and for which appropriate reserves have
been established, to the extent required by GAAP, all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums,
material in the aggregate to such UPP Subpartnership, which have become due and
payable and which by law have or may become a Lien other than a judgment lien
upon any of such UPP Subpartnership's properties or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto.
7.2.5 Maintenance of Permits, Etc. Borrower will cause each UPP
Subpartnership to maintain in full force and effect all Permits, franchises,
patents, trademarks, trade names, copyrights, authorizations or other rights
necessary for the operation of its business, except where the failure to obtain
any of the foregoing will not have a Material Adverse Effect on Borrower; and
Borrower shall notify Administrative Agent in writing, promptly after learning
thereof, of the suspension, cancellation, revocation or discontinuance of or of
any pending or threatened action or proceeding seeking to suspend, cancel,
revoke or discontinue any material Permit, patent, trademark, trade name,
copyright, governmental approval, franchise authorization or right.
7.2.6 Conduct of Business. Each UPP Subpartnership shall continue to
be a Partnership with its sole business being owning, operating and developing
the Unencumbered Pool Property(ies) owned by it.
7.3. With Respect to the REIT:
7.3.1 Corporate Existence. The REIT shall at all times maintain its
corporate existence and preserve and keep in full force and effect its rights
and franchises unless the failure to maintain such rights and franchises will
not have a Material Adverse Effect on the REIT.
7.3.2 Qualification, Name. The REIT shall qualify and remain
qualified to do business in each jurisdiction in which the nature of its
business requires it to be so qualified except for those jurisdictions where
failure to so qualify does not have a Material Adverse Effect on the REIT.
7.3.3 Securities Law Compliance. The REIT shall comply in all
material respects with all rules and regulations of the Commission and file all
reports required by the Commission relating to the REIT's publicly-held
Securities.
7.3.4 Continued Status as a REIT; Prohibited Transactions. The REIT
(i) will continue to be a real estate investment trust as defined in Section 856
of the Internal Revenue Code (or any successor provision thereto), (ii) will not
revoke its
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election to be a real estate investment trust, (iii) will not engage in any
"prohibited transactions" as defined in Section 856(b)(6)(iii) of the Internal
Revenue Code (or any successor provision thereto), and (iv) will continue to be
entitled to a dividend paid deduction meeting the requirements of Section 857 of
the Internal Revenue Code.
7.3.5 NYSE/AMEX Listed Company. The common stock of the REIT shall
at all times be listed for trading and be traded on the New York Stock Exchange
or the American Stock Exchange.
7.3.6 Compliance with Laws, Etc. The REIT shall (i) comply with all
Requirements of Law and restrictive covenants affecting the REIT and (ii) obtain
as needed all Permits necessary for its operations and maintain such in good
standing, except in each of the foregoing cases where the failure to do so will
not have a Material Adverse Effect on the REIT.
7.3.7 Payment of Taxes and Claims. The REIT shall pay (i) all taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
property before any penalty or interest accrues thereon, the failure to make
payment of which will have a Material Adverse Effect on the REIT, and (ii)
except to the extent being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established, to the extent required
by GAAP, all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums, material in the aggregate to the REIT, which
have become due and payable and which by law have or may become a Lien other
than a judgment lien upon any of the REIT's properties or assets, prior to the
time when any penalty or fine shall be incurred with respect thereto.
ARTICLE VIII
NEGATIVE COVENANTS
Borrower covenants and agrees that, on and after the date hereof,
until payment in full of all of the Obligations, the expiration of the
Commitments and termination of this Agreement:
8.1. With Respect to all Parties: Neither Borrower, the REIT nor any UPP
Subpartnership shall:
8.1.1 Liens. (i) Directly or indirectly create, incur, assume or
permit to exist any Lien, except for Permitted Liens, on or with respect to all
or any portion of (A) any Unencumbered Pool Property or (B) any interest of
Borrower (direct or indirect) in any Person that owns any Unencumbered Pool
Property; (ii) directly or indirectly create, assume or permit to exist any Lien
on Permitted UPP Secured Debt; or (iii) directly or indirectly create, assume or
permit to exist any Negative Pledge on (A) any
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Unencumbered Pool Property (other than an Unencumbered Pool Property owned by a
Guarantor Subpartnership), or (B) any interest of Borrower (direct or indirect)
in any Person that owns any Unencumbered Pool Property.
8.1.2 Transfers of Unencumbered Pool Property. Transfer, directly or
indirectly, all or any interest in (i) any Unencumbered Pool Property except (A)
upon the effectiveness of a Termination of Designation in accordance with
Section 3.2, or (B) to Borrower or to a UPP Subpartnership (provided that
Borrower shall not transfer any Unencumbered Pool Property to (1) a UPP
Subpartnership unless, upon giving effect to such transfer, the aggregate
Individual UPP Values of the Unencumbered Pool Properties owned by UPP
Subpartnerships (whether or not such UPP Subpartnerships are Guarantor
Subpartnerships) will not exceed fifteen percent (15%) of the Unencumbered Pool
Value, or (2) a UPP Partnership that is not a Guarantor Subpartnership unless,
upon giving effect to such transfer, the aggregate Individual UPP Values of the
Unencumbered Pool Properties owned by UPP Subpartnerships that are not Guarantor
Subpartnerships will not exceed five percent (5%) of the Unencumbered Pool
Value), or (ii) Permitted UPP Secured Debt.
8.1.3 Restrictions on Fundamental Changes.
(a) Enter into any merger or consolidation unless (A) if Borrower
or the REIT is involved, (1) the Borrower or REIT, as the case may be,
is the surviving entity, and (2) as of the closing of such merger or
consolidation, Borrower would be in compliance with each of the
covenants contained in Article 9, in each case, determined as of the end
of the most recently concluded fiscal quarter and as if such merger or
consolidation had occurred on the last day of such fiscal quarter, or
(B) if one or more UPP Subpartnerships (but not Borrower or the REIT) is
involved, a UPP Subpartnership is the surviving entity; or
(b) in the case of Borrower or the REIT, liquidate, wind-up or
dissolve (or suffer any liquidation or dissolution); or
(c) Except for Permitted Investments, engage in any line of
business other than as permitted under Section 7.1.8.
8.1.4 ERISA. Permit any ERISA Affiliates to do any of the following
to the extent that such act or failure to act would result in the aggregate,
after taking into account any other such acts or failure to act, in a Material
Adverse Effect on Borrower or the REIT:
(a) Engage, or knowingly permit an ERISA Affiliate to engage, in
any prohibited transaction described in Section 406 of the ERISA or
Section 4975 of the Internal Revenue Code which is not exempt under
Section 407 or 408 of
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ERISA or Section 4975(d) of the Internal Revenue Code for which a class
exemption is not available or a private exemption has not been
previously obtained from the DOL;
(b) Permit to exist any accumulated funding deficiency (as
defined in Section 302 of ERISA and Section 412 of the Internal Revenue
Code), whether or not waived;
(c) Fail, or permit an ERISA Affiliate to fail, to pay timely
required contributions or annual installments due with respect to any
waived funding deficiency to any Plan if such failure could result in
the imposition of a Lien or otherwise would have a Material Adverse
Effect on Borrower or the REIT;
(d) Terminate, or permit an ERISA Affiliate of Borrower or the
REIT to terminate, any Benefit Plan which would result in any liability
of Borrower or the REIT, or an ERISA Affiliate of either of them, under
Title IV of ERISA; or
(e) Fail, or permit any ERISA Affiliate to fail, to pay any
required installment under Section 412(m) of the Internal Revenue Code
or any other payment required under Section 412 of the Internal Revenue
Code on or before the due date for such installment or other payment, if
such failure could result in the imposition of a Lien or otherwise would
have a Material Adverse Effect on Borrower or the REIT.
8.2. Amendment of Constituent Documents. Except (i) for any such
amendment that is required (A) under any Requirement of Law imposed by any
Governmental Authority or (B) in order to maintain compliance with Section
7.3.4, or (ii) with the prior written consent of Majority Lenders: (1) neither
Borrower nor any UPP Subpartnership shall amend its or SWIP's Partnership
Agreement (including, without limitation, as to the admission of any new
partner, directly or indirectly), and (2) the REIT shall not amend its articles
of incorporation or by-laws; in any such case, in any manner that would have a
material adverse effect on the ability of such Person to perform its obligations
under the Loan Documents.
8.3. Disposal of UPP Subpartnership Interests. Neither Borrower nor the
REIT will directly or indirectly convey, sell, transfer, assign, pledge or
otherwise encumber or dispose of any of its partnership (or other ownership)
interests in SWIP or in any UPP Subpartnership at any time when any Property
owned by such UPP Subpartnership is an Unencumbered Pool Property.
8.4. Margin Regulations. No portion of the proceeds of any Loans shall
be used in any manner which might cause the extension of credit or the
application of such proceeds to violate Regulation U or X or any other
regulation of the Federal Reserve
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Board or to violate the Securities Exchange Act or the Securities Act, in each
case as in effect on the applicable Funding Date.
8.5. Change in Control. Borrower shall not permit the occurrence of any
Change in Control.
8.6. Organization of Borrower, Etc. Borrower shall remain a California
limited partnership with the REIT as its sole general partner. At no time shall
Borrower be taxed as an association under the Internal Revenue Code.
8.7. With Respect to each UPP Subpartnership:
8.7.1 No UPP Subpartnership shall directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except the Obligations, Permitted UPP Secured Debt
and trade debt incurred in the ordinary course of business.
8.7.2 No UPP Subpartnership shall directly or indirectly create,
incur, assume or permit to exist any Lien on or with respect to any of its
Property or assets, except Permitted Liens and Liens, in favor of Borrower,
securing Permitted UPP Secured Debt.
8.7.3 No UPP Subpartnership shall engage in any line of business
other than owning and operating one or more Unencumbered Pool Properties.
8.7.4 There shall be no change in the ownership interests of any UPP
Subpartnership, other than transfers from one or more limited partners to
Borrower or the REIT or to another limited partner of such UPP Subpartnership.
There shall be no admission of partners to any UPP Subpartnership after the date
it becomes a UPP Subpartnership.
8.8. With Respect to the REIT:
8.8.1 The REIT shall not own any material assets or engage in any
line of business other than owning partnership interests in Borrower and SWIP.
8.8.2 The REIT shall not directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except the Obligations and other Borrower Debt.
8.8.3 The REIT shall not directly or indirectly create, incur,
assume or permit to exist any Lien on or with respect to any of its Property or
assets other than Permitted Liens.
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8.8.4 The REIT shall at no time (i) cease to be a listed company on
either the New York Stock Exchange or the American Stock Exchange, or (ii) cease
to be a qualified real estate investment trust in the manner referred to in
Section 5.3.14.
8.8.5 The REIT will not directly or indirectly convey, sell,
transfer, assign, pledge or otherwise encumber or dispose of any of its
partnership interests in Borrower or SWIP.
8.9. With Respect to Non-Guarantor Subsidiaries.
The Gross Asset Value attributable to the Subsidiaries of Borrower
which are not Guarantors shall at no time exceed fifteen percent (15%) of total
Gross Asset Value. As necessary in order to assure continuous compliance with
the foregoing covenant, Borrower shall from time to time cause one or more of
such Subsidiaries to become a Guarantor hereunder.
ARTICLE IX
FINANCIAL COVENANTS
Borrower covenants and agrees that, on and after the date of this
Agreement and until payment in full of all the Obligations, the expiration of
all Commitments and the termination of this Agreement:
9.1. Minimum Net Worth. Borrower will maintain a Net Worth of not less
than One Billion Eight Hundred Fifty-Four Million Two Hundred Twenty-Two
Thousand Dollars ($1,854,222,000) (a) plus ninety percent (90%) of Net Offering
Proceeds received by Borrower after the Closing Date, and (b) minus the
aggregate cost of repurchasing stock or limited partnership interests from the
holder of any such equity interests in the REIT or Borrower; provided, however,
that the repurchase of such stock or limited partnership interests shall only be
permitted if (i) without limiting the general applicability of Section 9.8.4,
Borrower is in compliance with this Section 9.1 prior to such repurchase, and
(ii) after giving effect to such repurchase, Borrower's Net Worth shall equal or
exceed $1,500,000,000 plus the amount referred to in clause (a) above.
9.2. Total Liabilities to Gross Asset Value Ratio. The ratio of Total
Liabilities of Borrower and its Subsidiaries (determined without duplication) to
Gross Asset Value (the "Total Liabilities to Gross Asset Value Ratio") shall not
exceed 0.55:1 other than during a "Permitted Excess Period", as defined herein.
Under no circumstances shall the Total Liabilities to Gross Asset Value Ratio at
any time exceed 0.60:1.
For purposes of this Section 9.2, "Permitted Excess Period" means
either a "90 Day Excess Period" or a "180 Day Excess Period" (as such terms are
defined in
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subsections (a) and (b) below), during which period the Total Liabilities to
Gross Asset Value Ratio is greater than 0.55:1 (but less than or equal to
0.60:1) (an "Excess Period").
(a) A "90 Day Excess Period" is an Excess Period that (i) does
not exceed ninety (90) consecutive days, (ii) is followed immediately by
a period of at least thirty (30) days in which the Total Liabilities to
Gross Asset Value Ratio is less than or equal to 0.55:1, and (iii)
occurs, in whole or in part, no more than twice in any consecutive
twelve month period.
(b) A "180 Day Excess Period" is an Excess Period that (i)
exceeds ninety days but does not exceed one hundred eighty (180) days,
and (ii) is both preceded immediately by, and is followed immediately
by, a period of at least one hundred eighty (180) days in which the
Total Liabilities to Gross Asset Value Ratio is less than or equal to
0.55:1.
9.3. Secured Debt to Gross Asset Value Ratio. The ratio of Secured
Borrower Debt to Gross Asset Value shall not exceed, at any time, 0.30:1.
9.4. EBIDA to Interest Expense Ratio. The ratio of EBIDA to Interest
Expense shall not be less than 2.0:1.
9.5. EBIDA to Fixed Charges. The ratio of EBIDA to Fixed Charges shall
not be less than 1.50:1.
9.6. Unencumbered NOI to Unsecured Interest Expense Ratio. The ratio of
Unencumbered NOI to Unsecured Interest Expense shall not be less than 1.75:1.
9.7. Unencumbered Pool Property Covenants. Borrower shall comply at all
times with the following additional covenants:
9.7.1 (a) the aggregate Individual UPP Values of all Special UPPs of
types other than the Approved Property Types will not exceed ten percent (10%)
of the Unencumbered Pool Value, (b) no Special UPP of a type other than the
Approved Property Types will have an Individual UPP Value in excess of five
percent (5%) of the Unencumbered Pool Value, (c) the aggregate Individual UPP
Values of all Special UPPs located outside the Approved Markets will not exceed
ten percent (10%) of the Unencumbered Pool Value, (d) the Aggregate Occupancy
Rate will not be less than ninety percent (90%), (e) the aggregate Individual
UPP Values of the Unencumbered Pool Properties owned by UPP Subpartnerships
(whether or not such UPP Subpartnerships are Guarantor Subpartnerships) will not
exceed fifteen percent (15%) of the Unencumbered Pool Value, (f) the aggregate
Individual UPP Values of the Unencumbered Pool Properties owned by UPP
Subpartnerships that are not Guarantor Subpartnerships will not exceed five
percent (5%) of the Unencumbered Pool Value, and (g) the aggregate Individual
UPP Values of ground leased Unencumbered Pool Properties
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(other than the initial Ground Leases (or Affiliate ground leases approved
pursuant to Section 3.1.2(a), clause (y))) will not exceed seven and one-half
percent (7.5%) of the Unencumbered Pool Value; provided that the limitations
referred to in clauses (a), (b), (c) and (g) shall be increased by the
Individual UPP Value of any Unencumbered Pool Property specially approved by
Administrative Agent and the Majority Lenders, by way of exception to the
otherwise applicable value limitation, in accordance with Section 3.1.2(a).
9.7.2 If at any time Borrower fails at any time to be in compliance
with one or more of the covenants set forth in Section 9.7.1, Borrower shall
have a period of forty (40) days following such failure to comply to cure the
non-compliance by either, as applicable, designating additional Properties as
Unencumbered Pool Properties in accordance with Section 3.1.2, or terminating
the designation of certain Properties as Unencumbered Pool Properties in
accordance with Section 3.2 (such Properties being the "Proposed Properties").
No breach of the covenants in Section 9.7.1 shall exist unless (a) such
designation or termination has not become effective with respect to the Proposed
Properties by the fortieth (40th) day after Borrower's failure to comply with
such covenants, or (b) such failure to comply is not otherwise cured by the
fortieth (40th) day after Borrower's failure to comply.
9.8. Distributions.
9.8.1 For purposes of this Section 9.8, the term "distributions"
shall mean and include all dividends and other distributions to, and the
repurchase of stock or limited partnership interests from, the holder of any
equity interests in Borrower or the REIT.
9.8.2 Subject to Section 9.8.4, and except as expressly permitted in
Section 9.8.3, aggregate distributions to shareholders of the REIT and all
limited partners of Borrower (except as expressly excluded in the definition of
Funds From Operations) shall not exceed the sum of:
(a) the greater of (i) ninety-five percent (95%) of Funds From
Operations for the four (4) preceding Fiscal Quarters, or (ii) such
greater amount, but not in excess of one hundred percent (100%) of Funds
From Operations for any four (4) consecutive Fiscal Quarters, as
Borrower may be required to distribute to its shareholders in order to
maintain compliance with Section 7.3.4; plus
(b) the amount of any previously undistributed capital gains of
Borrower.
9.8.3 Subject to Sections 9.8.4 and 9.8.2, the REIT may from time to
time repurchase shares of its publicly traded stock, and Borrower may from time
to time repurchase limited partnership interests in Borrower.
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9.8.4 No distributions shall be made during the continuance of any
Event of Default arising out of Borrower's failure to pay any of the Obligations
when due (a "Monetary Default"). Aggregate distributions during the continuance
of any Event of Default other than a Monetary Default shall not exceed the
lesser of (i) the aggregate amount permitted to be made during the continuance
thereof under Section 9.8.2(a), and (ii) the minimum amount that the REIT must
distribute to its shareholders in order to maintain compliance with Section
7.3.4; and no distributions shall be made in respect of capital gains or
pursuant to Section 9.8.3 during such continuance.
9.9. Permitted Investments. Notwithstanding the limitations set forth in
Section 7.1.8, Borrower may make the following Permitted Investments, so long as
(i) the aggregate amount of all Permitted Investments (excluding Investments in
Permitted UPP Secured Debt) does not exceed, at any time, twenty-five percent
(25%) of Gross Asset Value, and (ii) the aggregate amount of each of the
following categories of Permitted Investments does not exceed the specified
percentage of Gross Asset Value, in each case as of the date made:
Maximum
Percentage of
Permitted Investment Gross Asset Value
-------------------- -----------------
Land: 7.5%
Securities and Third Party Partner Debt: 7.5%
Investment Mortgages: 12.5%
Partnerships: 20%
provided that (i) the aggregate Investment in Partnerships other than
Majority Partnerships whose properties are consistent with the type
and location of properties held by Borrower at the Closing Date shall
not exceed ten percent (10%) of Gross Asset Value; (ii) the aggregate
Individual UPP Values of the Unencumbered Pool Properties owned by UPP
Subpartnerships (whether or not such UPP Subpartnerships are Guarantor
Subpartnerships) shall not exceed fifteen percent (15%) of the
Unencumbered Pool Value; and (iii) the aggregate Individual UPP Values
of the Unencumbered Pool Properties owned by UPP Subpartnerships that
are not Guarantor Subpartnerships shall not exceed five percent (5%)
of the Unencumbered Pool Value.
For purposes of calculating compliance with the foregoing: (1) the amount of
each Investment will be deemed to be the original Acquisition Price thereof; (2)
in the case of each Investment in Land, Investment Mortgages and Partnerships,
the nature of the
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underlying real property asset and the conduct of business in respect thereof
shall in all respects comply with the limitations set forth in Section 7.1.8;
and (3) "Partnerships" shall not include the thirteen (13) Partnerships referred
to on page 80 of Borrower's Prospectus dated November 11, 1993 (which
Partnerships own fifteen (15) Properties in the State of Washington), so long as
such Partnerships do not acquire additional Properties and Borrower's direct or
indirect interest therein is not reduced.
9.10. Construction in Process. The aggregate costs of Construction in
Process shall not exceed fifteen percent (15%) of Gross Asset Value (for
purposes of determining the foregoing percentage, Gross Asset Value shall be
increased by the aggregate costs of Construction in Process). For purposes of
this Section 9.10, "Construction in Process" shall include each improvement on
real property owned or leased by Borrower as to which any of the following is
true:
(a) a certificate of occupancy (or its equivalent) has not been
issued with respect to such improvement;
(b) in the case of a multi-tenant improvement, less than
eighty-five percent (85%) of the net rentable square footage of such
improvement is occupied by tenants under fully executed leases who have
commenced paying rent under such leases; or
(c) in the case of a single-tenant improvement, such tenant is
not in occupancy under a fully executed lease and paying rent
thereunder.
For purposes of this Section 9.10, "costs of Construction in Process" to
complete a particular improvement shall be based on proforma budgeted costs
prepared in good faith by Borrower.
9.11. Value of Unconsolidated Affiliates and Non-Wholly Owned
Subsidiaries.
The aggregate Gross Asset Value attributable to Unconsolidated Affiliates and
non-wholly owned consolidated Subsidiaries of Borrower shall not exceed twenty
percent (20%) of total Gross Asset Value. For purposes of this Section 9.11,
non-wholly owned Subsidiaries shall not include Subsidiaries which are
wholly-owned by Borrower, the REIT or any of their wholly-owned Subsidiaries.
9.12. Calculation. Each of the foregoing ratios and financial
requirements, other than under Section 9.2, shall be calculated as of the last
day of each Fiscal Quarter, but shall be satisfied at all times. The Total
Liabilities to Gross Asset Value Ratio shall be satisfied at all times, but
shall be reported (i) unless the Total Liabilities to Gross Asset Value Ratio,
as of the last day of any calendar month, exceeds 0.55:1, on a quarterly basis,
and (ii) if at any time the Total Liabilities to Gross Asset Value Ratio exceeds
0.55:1, on a monthly basis thereafter until monthly reporting is no longer
required under
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Section 6.1.19. For purposes of determining compliance with Sections 9.4, 9.5
and 9.6, the period covered thereby shall be the immediately preceding Fiscal
Quarter.
ARTICLE X
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
10.1. Events of Default. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
10.1.1 Failure to Make Payments When Due. Borrower shall fail to pay
(i) any amount due on the Termination Date, (ii) any principal when due, or
(iii) any interest on any Loan, or any fee or other amount payable under any
Loan Documents, within five (5) days after the same becomes due (and, for
purposes of this Section 10.1.1, amounts stated to be payable "immediately" or
"upon demand" are due upon demand).
10.1.2 Distributions. Borrower or the REIT shall breach any covenant
set forth in Section 7.3.4 or 9.8.
10.1.3 Breach of Financial Covenants. (i) Borrower shall fail to
satisfy any financial covenant set forth in Article IX (other than the
requirements in Section 9.2, 9.4, 9.5, 9.6 and 9.8) and such failure shall
continue for sixty (60) days; or (ii) Borrower shall fail to satisfy any
financial covenant set forth in Section 9.4, 9.5 or 9.6 as of the last day of
any Fiscal Quarter and as of the last day of each of the next two calendar
months (determined, in each of the latter cases, on the basis of the three-month
period ended as of such date); or (iii) Borrower shall fail to satisfy the
financial covenant set forth in Section 9.2 at any time.
10.1.4 Other Defaults. Borrower, the REIT or any Guarantor
Subpartnership shall fail duly and punctually to perform or observe any
agreement, covenant or obligation binding on Borrower, the REIT or any Guarantor
Subpartnership under this Agreement or under any of the other Loan Documents
(other than as described in any other provision of this Section 10.1), and with
respect to agreements, covenants or obligations for which no time period for
performance is otherwise provided, such failure shall continue for fifteen (15)
days after Borrower, the REIT or any Guarantor Subpartnership knew of such
failure (or such lesser period of time as is mandated by applicable Requirements
of Law); provided, however, if such failure is not capable of cure within such
fifteen (15) day period, then if Borrower promptly undertakes action to cure
such failure and thereafter diligently prosecutes such cure to completion within
forty-five (45) days after Borrower, the REIT or any Guarantor Subpartnership
knew of such failure (or within such longer period of time as the Requisite
Lenders may approve, in their sole discretion), then Borrower shall not be in
default hereunder; and provided further that if the Aggregate Occupancy Rate
falls below ninety percent (90%) and the proviso to Section 9.7 applies,
Borrower shall have no further opportunity to cure any
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resulting breach of that Section prior to the occurrence of an Event of Default,
and such resulting breach shall constitute an Event of Default.
10.1.5 Breach of Representation or Warranty. Any representation or
warranty made or deemed made by Borrower, the REIT or any Guarantor
Subpartnership to Administrative Agent or any Lender or Designated Bid Lender
herein or in any of the other Loan Documents or in any statement, certificate or
financial statements at any time given by Borrower pursuant to any of the Loan
Documents (including, without limitation, any UPP Eligibility Certification)
shall be false or misleading in any material respect on the date as of which
made.
10.1.6 Default as to Other Indebtedness. (i) Borrower, the REIT, any
Guarantor Subpartnership or any Majority Partnership shall have (A) failed to
pay when due (beyond any applicable grace period), any amount in respect of any
Indebtedness of such party other than the Obligations if the aggregate amount of
such other Indebtedness is Ten Million Dollars ($10,000,000) or more; or (B)
otherwise defaulted (beyond any applicable grace period) under any Indebtedness
of such party other than the Obligations if (1) the aggregate amount of such
other Indebtedness is Ten Million Dollars ($10,000,000) or more, and (2) the
holder of such Indebtedness has accelerated such Indebtedness; or (ii) any such
other Indebtedness shall have otherwise become payable, or be required to be
purchased or redeemed, prior to its scheduled maturity; or (iii) the holder(s)
of any Lien, in any amount, commence foreclosure of such Lien upon any Property
having an aggregate value in excess of Ten Million Dollars ($10,000,000);
provided, however, that the foregoing $10,000,000 limitation shall be increased
to Twenty Million Dollars ($20,000,000) in the case of Nonrecourse Indebtedness,
so long as such default under or foreclosure on such Nonrecourse Indebtedness
shall not give rise to an Event of Default under Section 10.1.14.
10.1.7 Involuntary Bankruptcy; Appointment of Receiver, etc.
(a) At any time, an involuntary case or cases shall have been
commenced against (i) the REIT, (ii) Borrower, or (iii) any one or more
UPP Subpartnerships or other Subsidiaries of Borrower contributing, in
the aggregate, ten percent (10%) or more of Borrower's Gross Asset Value
at the time such case is commenced (collectively, regardless of the
number of such Persons, a "Material Subsidiary"), and shall continue
undismissed for a period of sixty (60) consecutive days after
commencement of the case(s), or a court having jurisdiction shall enter
a decree or order for relief in respect of Borrower, the REIT or any
Material Subsidiary in an involuntary case(s), under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any
applicable federal, state or foreign law with respect to Borrower, the
REIT or any Material Subsidiary; or
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(b) A decree or order of a court (or courts) having jurisdiction
in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers
over the REIT, Borrower or any Material Subsidiary, or over all or a
substantial part of the property of any such Person, shall be entered;
or an interim receiver, trustee or other custodian of any such Person or
of all or a substantial part of the property of any such Person, shall
be appointed or a warrant of attachment, execution or similar process
against any substantial part of the property of any such Person, shall
be issued and any such event shall not be stayed, vacated, dismissed,
bonded or discharged within sixty (60) days of entry, appointment or
issuance.
10.1.8 Voluntary Bankruptcy; Appointment of Receiver, Etc. The REIT,
Borrower or any Material Subsidiary shall have an order for relief entered with
respect to it or commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or shall consent to
the entry of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or taking of possession by a receiver, trustee or other
custodian for all or a substantial part of its property; any such Person shall
make any assignment for the benefit of creditors or shall be unable or fail, or
admit in writing its inability, to pay its debts as such debts become due; or
the general partner (or Person(s) serving in a similar capacity) or Board of
Directors (or any committee thereof) of Borrower, the REIT or any Material
Subsidiary adopts any resolution or otherwise authorizes any action to approve
any of the foregoing.
10.1.9 Judgments and Attachments. (i) Any money judgment (other than
a money judgment covered by insurance but only if the insurer has admitted
liability with respect to such money judgment), writ or warrant of attachment,
or similar process involving in any case an amount in excess of Ten Million
Dollars ($10,000,000) shall be entered or filed against the REIT, Borrower or
any Majority Subsidiary or the assets of any such Person, and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days,
or (ii) any judgment or order of any court or administrative agency awarding
material damages shall be entered against any such Person in any action under
the Federal securities laws seeking rescission of the purchase or sale of, or
for damages arising from the purchase or sale of, any Securities, such judgment
or order shall have become final after exhaustion of all available appellate
remedies and the payment of such judgment or order would have a Material Adverse
Effect on Borrower or the REIT.
10.1.10 Dissolution. Any order, judgment or decree shall be entered
against the REIT, Borrower or any Material Subsidiary decreeing its involuntary
dissolution or split up and such order shall remain undischarged and unstayed
for a period in excess of thirty (30) days; or the REIT or Borrower shall
otherwise dissolve or cease to exist.
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10.1.11 Validity of Loan Documents; Subordination of Obligations. If
for any reason (i) any Loan Document shall cease to be in full force and effect,
or (ii) any Obligation shall be subordinated in right of payment to any other
liability of Borrower, and, in either such case, such condition or event shall
continue for fifteen (15) days after Borrower, the REIT or any Guarantor
Subpartnership knew of such condition or event.
10.1.12 ERISA Liabilities. Any Termination Event occurs which will
or is reasonably likely to subject Borrower or the REIT, or any ERISA Affiliate
of either of them, to a liability which will have a Material Adverse Effect on
Borrower or the REIT, or the plan administrator of any Benefit Plan applies for
approval under Section 412(d) of the Internal Revenue Code for a waiver of the
minimum funding standards of Section 412(a) of the Internal Revenue Code and the
business hardship upon which the Section 412(d) waiver was based would have a
Material Adverse Effect on Borrower or the REIT.
10.1.13 Change in Control. There shall occur any Change in Control.
10.1.14 Solvency; Environmental Liabilities; Material Adverse
Change. (i) Borrower or the REIT shall cease to be Solvent; or (ii) Borrower,
the REIT or any UPP Subpartnership becomes subject to any Liabilities and Costs,
which would have a Material Adverse Effect on Borrower or the REIT, arising out
of or related to (A) the Release or threatened Release at any Property of any
Contaminant into the environment, or any Remedial Action in response thereto, or
(B) otherwise any violation of any Environmental Laws; or (iii) there shall have
occurred any material adverse change in the business, operations, properties,
assets or condition (financial or otherwise) of Borrower or the REIT.
10.1.15 Breach of Guaranty. The REIT shall fail to duly and
punctually perform or observe any agreement, covenant or obligation under its
Guaranty, or any Guarantor Subpartnership shall fail to duly and punctually
perform or observe any agreement, covenant or obligation under its Guaranty.
An Event of Default shall be deemed "continuing" until cured or
waived in writing in accordance with Section 12.4.
10.2. Rights and Remedies.
10.2.1 Acceleration, Etc. Upon the occurrence of any Event of
Default described in the foregoing Section 10.1.7 or 10.1.8 with respect to the
REIT, Borrower or any UPP Subpartnership, the Commitments shall automatically
and immediately terminate and the unpaid principal amount of and any and all
accrued interest on the Loans shall automatically become immediately due and
payable, with all additional interest from time to time accrued thereon and
without presentment, demand or protest or other requirements of any kind
(including, without limitation, valuation and
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appraisement, diligence, presentment, notice of intent to demand or accelerate
or notice of acceleration), all of which are hereby expressly waived by
Borrower, and the obligations of Lenders and (with respect to Bid Loans)
Designated Bid Lenders to make any Loans hereunder shall thereupon terminate;
and upon the occurrence and during the continuance of any other Event of
Default, Administrative Agent shall, at the request, or may, with the consent of
the Requisite Lenders, by written notice to Borrower, (i) declare that the
Commitments are terminated, whereupon the Commitments and the obligation of
Lenders and (with respect to Bid Loans) Designated Bid Lenders to make any Loan
hereunder shall immediately terminate, and/or (ii) declare the unpaid principal
amount of, any and all accrued and unpaid interest on the Loans and all of the
other Obligations to be, and the same shall thereupon be, immediately due and
payable with all additional interest from time to time accrued thereon and
without presentment, demand, or protest or other requirements of any kind
(including without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration), all
of which are hereby expressly waived by Borrower. Without limiting
Administrative Agent's authority hereunder, on or after the Termination Date,
Administrative Agent shall, at the request, or may, with the consent, of the
Requisite Lenders exercise any or all rights and remedies under the Loan
Documents or applicable law. Upon the occurrence of and during the continuance
of an Event of Default, Administrative Agent shall be entitled to request and
receive, by or through Borrower or appropriate legal process, any and all
information concerning the REIT, Borrower, any UPP Subpartnership or any
property of any of them, which is reasonably available to or obtainable by
Borrower.
10.2.2 Waiver of Demand. Except to the extent otherwise expressly
provided herein, demand, presentment, protest and notice of nonpayment are
hereby waived by Borrower. Borrower also waives, to the extent permitted by law,
the benefit of all exemption laws.
10.2.3 Waivers, Amendments and Remedies. No delay or omission of
Administrative Agent, Lenders or Designated Bid Lenders to exercise any right
under any Loan Document shall impair such right or be construed to be a waiver
of any Event of Default or an acquiescence therein, and 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 a writing signed by Administrative Agent after obtaining written
approval thereof or the signature thereon of those Lenders (in their own
capacities and, to the extent that the consent of Designated Bid Lenders may be
required, as administrative agents for their respective Designated Bid Lenders)
required to approve such waiver, amendment or other variation, 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 Administrative Agent, Lenders and Designated Bid Lenders until the
Obligations have
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been paid in full, the Commitments have expired or terminated and this Agreement
has been terminated.
10.3. Rescission. If at any time after acceleration of the maturity of
the Loans, Borrower shall pay all arrears of interest and all payments on
account of principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Unmatured Events of Default (other than nonpayment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 12.4, then by
written notice to Borrower, the Requisite Lenders may elect, in their sole
discretion, to rescind and annul the acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Unmatured Event of
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind Lenders and Designated Bid
Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit Borrower and do not give Borrower the
right to require Lenders or Designated Bid Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.
ARTICLE XI
AGENCY PROVISIONS
11.1. Appointment.
11.1.1 Each Lender hereby (i) designates and appoints ▇▇▇▇▇ Fargo as
Administrative Agent of such Lender under this Agreement and the Loan Documents,
(ii) for itself and on behalf of and as administrative agent for its Designated
Bid Lender (if any), authorizes and directs Administrative Agent to enter into
the Loan Documents other than this Agreement for the benefit of Lenders and
Designated Bid Lenders, and (iii) for itself and on behalf of and as
administrative agent for its Designated Bid Lender (if any), authorizes
Administrative Agent to take such action on its behalf and on behalf of its
Designated Bid Lender under the provisions of this Agreement and the Loan
Documents and to exercise such powers as are set forth herein or therein,
together with such other powers as are reasonably incidental thereto, subject to
the limitations referred to in Sections 11.10.1, 11.10.2 and 11.10.3.
Administrative Agent agrees to act as such on the express conditions contained
in this Article XI.
11.1.2 The provisions of this Article XI are solely for the benefit
of Administrative Agent, Lenders and Designated Bid Lenders, and Borrower shall
not have any rights to rely on or enforce any of the provisions hereof (other
than as expressly set forth in Sections 11.3, 11.9 and 11.12), provided,
however, that the foregoing shall in no way limit Borrower's obligations under
this Article XI. In performing its functions and duties under this Agreement,
Administrative Agent shall act solely as Administrative
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Agent of Lenders and does not assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or for Borrower or any
other Person.
11.2. Nature of Duties. Administrative Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. The duties of Administrative Agent shall be administrative in
nature. Subject to the provisions of Sections 11.5 and 11.7, Administrative
Agent shall administer the Loans in the same manner as it administers its own
loans. Promptly following the effectiveness of this Agreement, Administrative
Agent shall send to each Lender its originally executed Loan Note and the
executed original, to the extent the same are available in sufficient numbers,
of each other Loan Document other than the Loan Notes in favor of other Lenders
and filed or recorded security document or instruments, with the latter to be
held and retained by Administrative Agent for the benefit of all Lenders and
Designated Bid Lenders. Administrative Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender or Designated Bid
Lender. Nothing in this Agreement or any of the Loan Documents, expressed or
implied, is intended or shall be construed to impose upon Administrative Agent
any obligation in respect of this Agreement or any of the Loan Documents except
as expressly set forth herein or therein. Each Lender and Designated Bid Lender
shall make its own independent investigation of the financial condition and
affairs of the REIT, Borrower, each UPP Subpartnership and each Unencumbered
Pool Property in connection with the making and the continuance of the Loans
hereunder and shall make its own appraisal of the creditworthiness of the REIT,
Borrower and each Guarantor Subpartnership, and, except as specifically provided
herein, Administrative Agent shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender or Designated Bid
Lender with any credit or other information with respect thereto, whether coming
into its possession before the Closing Date or at any time or times thereafter.
11.3. Loan Disbursements.
11.3.1 Promptly following receipt of a Notice of Borrowing,
Administrative Agent shall send a copy thereof by facsimile to each other Lender
and shall otherwise notify each Lender of the proposed Borrowing and the Funding
Date. Administrative Agent shall notify each Lender having an offer to make a
Bid Loan accepted (in whole or in part) of the amount of the Bid Loan(s) to be
made by it (or its Designated Bid Lender) on a particular Funding Date in
accordance with Section 2.1.3(f). (a) Each Lender shall make available to
Administrative Agent (or the funding bank or entity designated by Administrative
Agent) (i) in the case of a Borrowing consisting of Committed Loans, the amount
of such Lender's Pro Rata Share of such Borrowing, or (ii) in the case of a
Borrowing consisting of one or more Bid Loans, the amount of the Bid Loans to be
made by such Lender in connection therewith; and (b) each Designated
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Bid Lender electing to fund one or more Bid Loans that would otherwise have been
made by its Designating Lender with respect to an accepted Competitive Bid (or,
if such Designated Bid Lender fails to do so, its Designating Lender) shall make
the aggregate amount of such Bid Loan(s) available to Administrative Agent (or
the funding bank or entity designated by Administrative Agent); in each case, in
immediately available funds not later than the times designated in Section
11.3.2. Unless Administrative Agent shall have been notified by any Lender prior
to such time for funding in respect of any Borrowing that (1) such Lender does
not intend to make available to Administrative Agent such Lender's Pro Rata
Share of such Borrowing, or (2) in the case of a Bid Loan, neither such Lender
nor its Designated Bid Lender intends to make available to Administrative Agent
the amount of such Lender's Bid Loan(s), as the case may be, Administrative
Agent may assume that such Lender (or, if applicable, its Designated Bid Lender)
has made such amount available to Administrative Agent. In any case where, for
any reason, neither a Lender nor (if applicable) its Designated Bid Lender makes
available to Administrative Agent the amount so required to be made available by
such Lender or its Designated Bid Lender, Administrative Agent, in its sole
discretion, may, but shall not be obligated to, fund to Borrower such amount;
provided, however, that Administrative Agent shall first have obtained
Borrower's concurrence in such funding by Administrative Agent if the same is to
be made later than the Funding Date for the subject Borrowing. If the amount so
funded by Administrative Agent is not in fact made available to Administrative
Agent by the responsible Lender or its Designated Bid Lender, then Borrower
agrees to repay to Administrative Agent such amount, together with interest
thereon at the Base Rate for each day from the date such amount is made
available to Borrower until the date such amount is repaid to Administrative
Agent, not later than three (3) Business Days following Administrative Agent's
demand to Borrower that such repayment be made. In addition, such Lender agrees
to pay to Administrative Agent forthwith on demand such corresponding amount,
together with interest thereon at the Federal Funds Rate. If such Lender shall
pay to Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Pro Rata Share of such Borrowing (or such Lender's Bid
Loan(s), as the case may be), and if both such Lender and Borrower shall have
paid and repaid, respectively, such corresponding amount, Administrative Agent
shall promptly return to Borrower such corresponding amount in same day funds;
interest paid by Borrower in respect of such corresponding amount shall be
prorated, as of the date of payment thereof by such Lender to Administrative
Agent. In the event that Administrative Agent shall not have funded any amount
to be funded by a Lender or its Designated Bid Lender under this Section 11.3.1,
then Borrower shall not be obligated to accept a late funding of such Lender's
Pro Rata Share or Bid Loan(s), as the case may be, if such funding is made more
than two (2) Business Days following the applicable Funding Date. If Borrower
declines to accept such delinquent funding, Administrative Agent shall promptly
return to such Lender the amount of such funding. Nothing in this Section 11.3.1
shall alter the respective rights and obligations of the parties hereunder in
respect of a Defaulting Lender or a Non Pro Rata Loan.
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11.3.2 Requests by Administrative Agent for funding by Lenders or
Designated Bid Lenders of Loans will be made by telecopy. Each Lender shall make
the amount it is required to fund in respect of any Loan, and each Designated
Bid Lender shall make the amount of any Bid Loan that it elects to fund,
available to Administrative Agent in Dollars and in immediately available funds,
to such bank and account, in El Segundo, California (or to such bank and account
in such other place) as Administrative Agent may designate, not later than 10:00
a.m. (San Francisco time) on the Funding Date designated in the Notice of
Borrowing or Competitive Bid with respect to such Loan, but, in the case of a
Committed Loan, in no event earlier than two (2) Business Days following
Lender's receipt of the applicable Notice of Borrowing. If any Bid Loan is
funded by a Designated Bid Lender, its Designating Lender shall provide
Administrative Agent with notice to that effect on the relevant Funding Date.
11.3.3 If (a) as of 10:00 a.m. (San Francisco time) on the third
(3rd) Business Day after the Swing Line Lender has funded any Swing Line
Borrowing (the date such Swing Line Borrowing was funded, the "Swing Line
Funding Date"), Borrower has neither (i) repaid such Swing Line Borrowing in
full, nor (ii) notified the Swing Line Lender in writing that Borrower intends
to repay such Swing Line Borrowing in full on the next Business Day, nor (iii)
timely delivered a Notice of Borrowing requesting a proposed Funding Date, no
later than the fourth (4th) Business Day after such Swing Line Funding Date,
with respect to a Committed Loan in a principal amount sufficient to repay such
Swing Line Borrowing in full; or (b) as of 11:00 a.m. on the fourth (4th)
Business Day after such Swing Line Funding Date, (i) Borrower has not repaid
such Swing Line Borrowing in full, or (ii) the conditions precedent to any
requested Committed Loan the proceeds of which were to have been used (in whole
or in part) to repay such Swing Line Borrowing have not been satisfied; or (c)
if, at any time prior to the repayment of any Swing Line Borrowing, an Event of
Default shall have occurred or the Loans shall be accelerated, or the
Termination Date shall occur, for any reason whatsoever: (x) the Swing Line
Lender shall promptly (or, if an Event of Default has occurred but the Loans
have not been accelerated and the Termination Date has not occurred, may) notify
each Lender by telephone (confirmed promptly by telex, facsimile transmission or
cable), telex, facsimile transmission, or cable of the amount of such Swing Line
Borrowing; and (y) each Lender shall (subject to the limitation that no Lender
shall be required to fund any Committed Loan that would cause its Committed
Loans to exceed such Lender's Commitment), (i) in a case described in clause (a)
of this Section 11.3.3, before 10:00 a.m. (San Francisco time) on the next
Business Day, or (ii) in a case described in clause (b) or clause (c) of this
Section 11.3.3, before 12:00 noon (San Francisco time) on the date of such
notice, pay to the Swing Line Lender, to such bank and account in El Segundo,
California (or to such bank and account in such other place) as the Swing Line
Lender may designate, in immediately available funds, such Lender's Pro Rata
Share of the principal amount of such Swing Line Borrowing. Upon such funding,
each Lender shall be deemed to have acquired from the Swing Line Lender (and the
Swing Line Lender shall be deemed to have assigned to each such Lender) a
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percentage interest in such Swing Line Borrowing equal to such Lender's Pro Rata
Share, and, for purposes of determining the availability of Swing Line
Borrowings or Committed Loans, such Swing Line Borrowing shall be deemed a
Committed Loan (and no longer a Swing Line Borrowing); provided that the
obligations of the Lenders under this Section 11.3.3 shall not be subject to the
notice or amount requirements, or to satisfaction of conditions precedent,
otherwise applicable to the making of Revolving Loans. Each Lender's obligation
to fund, and to purchase from the Swing Line Lender, its Pro Rata Share of a
Swing Line Borrowing pursuant to this Section 11.3.3 shall be absolute and
unconditional under any and all circumstances (including, without limitation,
irrespective of any intervening bankruptcy of the Borrower or acceleration of
the Loans). It is not the parties' intent that the obligations of the Lenders
under this Section 11.3.3 constitute guaranties or obligations of suretyship. If
and to the extent, however, that the obligations of any Lender under this
Section 11.3.3 are determined to be those of a guarantor or surety, such Lender,
with full knowledge of the consequences thereof, hereby expressly waives the
benefit of each and every right or defense of a guarantor or surety the effect
of which would relieve such Lender of all or any portion of its obligations
under this Section 11.3.3. In the event that any Lender fails to pay to the
Swing Line Lender when due any amount it is required to fund under this Section
11.3.3, such Lender agrees to pay to the Swing Line Lender, on demand, the
amount such Lender has failed to so pay, together with interest thereon for each
day from the date on which such payment was due until the date such amount is
repaid to the Administrative Agent, at the Federal Funds Rate. The foregoing
shall in no way affect Borrower's obligation to repay such Swing Line Borrowing
in accordance with the provisions of the Loan Documents.
11.3.4 Nothing in this Section 11.3 shall be deemed to relieve any
Lender of its obligation hereunder to make its Pro Rata Share of Loans, or to
make any Bid Loan, on any Funding Date, nor, except to the extent expressly
provided (a) in Section 11.3.1 with respect to the obligation of any Designating
Bank to fund Bid Loans that are not funded by its Designated Bid Lender or (b)
in Section 11.12.3(b), shall any Lender or Designated Bid Lender be responsible
for the failure of any other Lender or Designated Bid Lender to perform its
obligations to make any Loan hereunder, and the Commitment of any Lender shall
not be increased or decreased as a result of the failure by any other Lender or
Designated Bid Lender to perform its obligation to make a Loan.
11.4. Distribution and Apportionment of Payments.
11.4.1 Subject to Section 11.4.2, payments actually received by
Administrative Agent for the account of Lenders and Designated Bid Lenders shall
be paid to Lenders (for their own accounts and, in their capacities as
administrative agents for their respective Designated Bid Lenders, for the
accounts of such Designated Bid Lenders) promptly after receipt thereof by
Administrative Agent, but in any event within two (2) Business Days, provided
that Administrative Agent shall pay to Lenders (for their
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own accounts and, in their capacities as administrative agents for their
respective Designated Bid Lenders, for the accounts of such Designated Bid
Lenders) interest thereon, at the lesser of (i) Federal Funds Rate and (ii) the
rate of interest applicable to such Loans, from the Business Day following
receipt of such funds by Administrative Agent until such funds are paid in
immediately available funds to Lenders (for their own accounts and, in their
capacities as administrative agents for their respective Designated Bid Lenders,
for the accounts of such Designated Bid Lenders). Subject to Section 11.4.2, (x)
all payments of principal and interest in respect of outstanding Committed
Loans, all payments of the fees described in this Agreement, and all payments in
respect of any other Obligations relating to the Committed Facility, shall be
allocated among such of Lenders as are entitled thereto, in proportion to their
respective Pro Rata Shares or otherwise as provided herein; and (y) all payments
of principal, interest or any other amount in respect of any Bid Loan shall be
paid to the Lender to whom, or whose Designated Bid Lender to whom, such amount
is due (for such Lenders' own accounts and, in their capacities as
administrative agents for their respective Designated Bid Lenders, for the
accounts of such Designated Bid Lenders), or otherwise as provided herein.
Administrative Agent shall promptly distribute, but in any event within two (2)
Business Days, to each Lender at its primary address set forth on the
appropriate signature page hereof or on the Assignment and Assumption, or at
such other address as a Lender may request in writing, such funds as it or its
Designated Bid Lender may be entitled to receive, provided that Administrative
Agent shall in any event not be bound to inquire into or determine the validity,
scope or priority of any interest or entitlement of any Lender or Designated Bid
Lender and may suspend all payments and seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or all Lenders and
Designated Bid Lenders, as applicable, or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby. The order of priority herein is set forth
solely to determine the rights and priorities of Lenders and Designated Bid
Lenders as among themselves and may at any time or from time to time be changed
by Lenders and Designated Bid Lenders as they may elect, in writing in
accordance with Section 12.4, without necessity of notice to or consent of or
approval by Borrower or any other Person. All payments or other sums received by
Administrative Agent for the account of Lenders or Designated Bid Lenders shall
not constitute property or assets of Administrative Agent and shall be held by
Administrative Agent, solely in its capacity as Administrative Agent for itself
and the other Lenders, subject to the Loan Documents.
11.4.2 Notwithstanding any provision hereof to the contrary, until
such time as a Defaulting Lender (or, in the case of a Defaulting Lender that is
a Designated Bid Lender, its Designating Lender) has funded (i) its Pro Rata
Share of a Committed Loan or its Bid Loan (in either such case, that was, until
such payment, a Non Pro Rata Loan) or all other Lenders and Designated Lenders
have received payment in full (whether by repayment or prepayment) of the
principal and interest due in respect of such Non Pro Rata Loan, such Defaulting
Lender's right to receive principal in respect of any
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Loan owing to such Defaulting Lender hereunder (but not such Lender's or
Designated Bid Lender's right to receive payment of any other Obligation due to
it) shall be subordinated in right of payment, as provided in the following
sentence, to the prior payment in full of all principal, interest and fees in
respect of all Non Pro Rata Loans in which the Defaulting Lender has not funded
the full amount it was required to have funded with respect thereto (such
principal, interest and fees being referred to as "Senior Loans"). All amounts
paid by Borrower and otherwise due to be applied to the principal of Obligations
owing to the Defaulting Lender pursuant to the terms hereof (i) if due with
respect to the Committed Loans, shall be distributed by Administrative Agent to
the other Lenders in accordance with their respective Pro Rata Shares
(recalculated for purposes hereof to exclude the Defaulting Lender's
Commitment), until all Senior Loans constituting Committed Loans have been paid
in full, and (ii) if due with respect to any Bid Loan, shall be distributed by
Administrative Agent to the other Lenders who have (or whose Designated Bid
Lenders have) Bid Loans then due and payable (for such Lenders' own accounts
and, in their capacities as administrative agents for their respective
Designated Bid Lenders, for the accounts of such Designated Bid Lenders), in
accordance with their respective pro rata shares (based on the ratio of the
aggregate amount due each such other Lender or Designated Bid Lender to the
aggregate amount then due and payable to all Lenders and Designated Bid Lenders,
but calculated for purposes hereof to exclude amounts due to the Defaulting
Lender with respect to the Bid Loans), until all Senior Loans constituting Bid
Loans then due and payable have been paid in full. This provision governs only
the relationship among Administrative Agent, each Defaulting Lender, and the
other Lenders and Designated Bid Lenders; nothing hereunder shall limit the
obligation of Borrower to repay all Loans in accordance with the terms of this
Agreement. The provisions of this section shall apply and be effective
regardless of whether an Event of Default occurs and is then continuing, and
notwithstanding (i) any other provision of this Agreement to the contrary, (ii)
any instruction of Borrower as to its desired application of payments or (iii)
the suspension of such Defaulting Lender's right to vote on matters which are
subject to the consent or approval of the Requisite Lenders, the Majority
Lenders or all Lenders and Designated Bid Lenders. In addition, until any
Lender's or Designated Bid Lender's failure to reimburse Administrative Agent
for any Liabilities and Costs as herein provided has been cured (which, in the
case of any failure to pay by a Designated Bid Lender, may be cured by its
Designating Bank), Administrative Agent shall be entitled to (1) withhold or
setoff, and to apply to the payment of the defaulted amount and any related
interest, any amounts to be paid to such Defaulting Lender under this Agreement,
and (2) (A) if such Defaulting Lender is a Lender, bring an action or suit
against such Defaulting Lender, or (B) if such Defaulting Lender is a Designated
Bid Lender, bring an action or suit against such Defaulting Lender's Designating
Lender (or, subject to the provisions of Section 11.12.3(e), such Defaulting
Lender) in a court of competent jurisdiction to recover the defaulted amount and
any related interest. In addition, the Defaulting Lender (and, in the case of a
Defaulting Lender that is a Designated Bid Lender, its Designating Bank) shall
indemnify, defend and hold Administrative Agent and each of the other Lenders
harmless
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from and against any and all Liabilities and Costs, plus interest thereon at the
Default Rate, which they may sustain or incur by reason of or as a direct
consequence of the Defaulting Lender's failure or refusal to abide by its
obligations under this Agreement.
11.5. Rights, Exculpation, Etc. Neither Administrative Agent, any
Affiliate of Administrative Agent, nor any of their respective officers,
directors, employees, agents, attorneys or consultants, shall be liable to any
Lender or Designated Bid Lender for any action taken or omitted by them
hereunder or under any of the Loan Documents, or in connection herewith or
therewith, except that Administrative Agent shall be liable for its gross
negligence or willful misconduct, or willful misconduct in the performance of
its express obligations hereunder. Administrative Agent shall not be responsible
to any Lender or Designated Bid Lender for any recitals, statements,
representations or warranties herein or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated hereby and thereby; or for the financial condition of the REIT,
Borrower, any UPP Subpartnership or any of their Affiliates. Administrative
Agent shall not be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any of the Loan Documents or the financial condition of the REIT,
Borrower, any UPP Subpartnership or any of their Affiliates, or the existence or
possible existence of any Unmatured Event of Default or Event of Default.
11.6. Reliance. Administrative Agent shall be entitled to rely upon any
written notices, statements, certificates, orders or other documents, telecopies
or any telephone message believed by it in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person, and with respect to
all matters pertaining to this Agreement or any of the Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel (including counsel
for Borrower), independent public accountant and other experts selected by it.
11.7. Indemnification. To the extent that Administrative Agent is not
reimbursed and indemnified by Borrower, Lenders will reimburse, within ten (10)
Business Days after notice from Administrative Agent, and indemnify and defend
Administrative Agent for and against any and all Liabilities and Costs which may
be imposed on, incurred by, or asserted against it in any way relating to or
arising out of this Agreement or any of the other Loan Documents or any action
taken or omitted by Administrative Agent or under this Agreement or any of the
other Loan Documents, in proportion to each Lender's Pro Rata Share; provided
that no Lender shall be liable for any portion of such Liabilities and Costs
resulting from Administrative Agent's gross negligence or willful misconduct or
in respect of normal administrative costs and expenses incurred by
Administrative Agent (prior to any Event of Default or any Unmatured Event of
Default) in connection with its performance of administrative duties under this
Agreement and the other Loan Documents. The obligations of Lenders under this
Section 11.7 shall survive the
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payment in full of all Obligations and the termination of this Agreement. In the
event that after payment and distribution of any amount by Administrative Agent
to Lenders or Designated Bid Lenders, any Lender or third party, including
Borrower, any creditor of Borrower or a trustee in bankruptcy, recovers from
Administrative Agent any amount found to have been wrongfully paid to
Administrative Agent or disbursed by Administrative Agent to Lenders or
Designated Bid Lenders, then Lenders and Designated Bid Lenders, in proportion
to their respective allocable shares of such distribution, shall reimburse
Administrative Agent for all such amounts; provided, however, that the foregoing
provisions shall not prohibit any Designating Lender from agreeing with its
Designated Bid Lender that, as between such Designating Lender and Designated
Bid Lender, such Designating Lender shall be responsible for any reimbursement
due to Administrative Agent hereunder by its Designated Bid Lender, and such
Designated Bid Lender's obligations under this Section 11.7 shall be discharged
to the extent that its Designating Lender so reimburses Administrative Agent.
11.8. Administrative Agent Individually. With respect to its Pro Rata
Share of the Commitments hereunder and the Loans made by it, Administrative
Agent shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender. The terms "Lenders", "Majority Lenders", or
"Requisite Lenders", or any similar terms, may include Administrative Agent in
its individual capacity as a Lender or one of the Requisite Lenders, but neither
"Majority Lenders" nor "Requisite Lenders" shall include Administrative Agent
solely in its capacity as Administrative Agent and neither such term shall
necessarily include Administrative Agent in its capacity as a Lender.
Administrative Agent and any Lender or Designated Bid Lender, and any Affiliate
of any of the foregoing, may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with Borrower or any of
its Affiliates as if it were not acting as Administrative Agent or Lender
pursuant hereto.
11.9. Successor Administrative Agent; Resignation of Administrative
Agent; Removal of Administrative Agent.
11.9.1 Administrative Agent may resign from the performance of all
its functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to Lenders and Borrower, and shall
automatically cease to be Administrative Agent hereunder in the event a petition
in bankruptcy shall be filed by or against Administrative Agent or the Federal
Deposit Insurance Corporation or any other Governmental Authority shall assume
control of Administrative Agent or Administrative Agent's interests under the
Loan Documents. Further, the Requisite Lenders may remove Administrative Agent
at any time, for good cause, by giving at least thirty (30) Business Days' prior
written notice to Administrative Agent, Borrower and all other Lenders. Such
resignation or removal shall take effect upon the acceptance by a successor
Administrative Agent of appointment pursuant to Section 11.9.2 or 11.9.3;
immediately
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following the effectiveness of such appointment, Borrower shall pay to the
retiring or removed Administrative Agent any accrued and unpaid agency fee, or
Administrative Agent shall refund to Borrower any prepaid agency fee, in each
case prorated to the effective date of such appointment of a successor
Administrative Agent.
11.9.2 Upon any such notice of resignation by or removal of
Administrative Agent, the Requisite Lenders shall appoint a successor
Administrative Agent with the consent of Borrower, which consent shall not be
unreasonably withheld or delayed and which consent shall not be required if
there shall then exist any Event of Default. Any successor Administrative Agent
must be a Lender (i) the senior debt obligations of which (or such Lender's
parent's senior unsecured debt obligations) are rated not less than BBB (or its
equivalent) by one of the Rating Agencies, by ▇▇▇▇▇'▇ Investors Service, or by
Duff & ▇▇▇▇▇▇ Credit Rating Co., and (ii) which has total assets in excess of
Ten Billion Dollars ($10,000,000,000). Such successor Administrative Agent shall
separately confirm in writing with Borrower the fee to be paid to such
Administrative Agent pursuant to Section 2.5.2.
11.9.3 If a successor Administrative Agent shall not have been so
appointed within said thirty (30) Business Day period, the retiring or removed
Administrative Agent, with (unless an Event of Default has occurred and is
continuing) the consent of Borrower (which may not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall meet the
requirements described in Section 11.9.2 and who shall serve as Administrative
Agent until such time, if any, as the Requisite Lenders, with the consent of
Borrower (unless an Event of Default has occurred and is continuing), appoint a
successor Administrative Agent as provided above.
11.9.4 Each successor Administrative Agent appointed pursuant to
this Section 11.9 shall concurrently assume the rights and obligations of the
Swing Line Lender under this Agreement (including the Swing Line Lender's
commitment to fund Swing Line Borrowings and its interest in outstanding
advances under the Swing Line). 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 retiring Administrative
Agent and Swing Line Lender, and the retiring Administrative Agent and Swing
Line Lender shall be discharged from its duties and obligations under this
Agreement. Notwithstanding any provision of Section 11.12 to the contrary, the
commitment of the Swing Line Lender to fund Swing Line Borrowings and the Swing
Line Lender's interest in outstanding Swing Line Borrowings may not be assigned
to any Person other than a Person who concurrently becomes both a successor
Administrative Agent pursuant to this Section 11.9 and the Swing Line Lender.
11.10. Consent and Approvals.
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11.10.1 Each of the following shall require the approval or consent
of the Majority Lenders:
(a) Approval of a new rating agency in place of S&P or Fitch, or
Moody's if previously designated by Borrower (per the definition of
"Rating Agency");
(b) Approval of any new Unencumbered Pool Property that does not
meet the UPP Eligibility Criteria (Section 3.1.3);
(c) Approval of any amendment of organizational documents that
would have a material adverse effect on the ability of Borrower or the
REIT to perform their obligations under the Loan Documents (Section
8.2); and
(d) Approval of any new UPP Subpartnership (per the definition of
that term).
11.10.2 Each of the following shall require the approval or consent
of the Requisite Lenders:
(a) Acceleration following an Event of Default (Section 10.2.1)
or rescission of such acceleration (Section 10.3);
(b) Approval of the exercise of rights and remedies under the
Loan Documents following an Event of Default (Section 10.2.1);
(c) Removal of Administrative Agent and appointment of a
successor (Section 11.9);
(d) Approval of certain changes in GAAP affecting calculation of
financial covenants (Section 12.3); and
(e) Except as referred to in Section 11.10.3, approval of any
amendment, modification or termination of this Agreement or any other
Loan Document, or waiver of any provision herein or therein (Section
12.4).
11.10.3 Approval of each amendment, modification or waiver
specifically enumerated in Section 12.4.1, shall require the consent of all
Lenders.
11.10.4 In addition to the required consents or approvals referred
to in Section 11.10.1 or 11.10.2, Administrative Agent may at any time request
instructions from the Requisite Lenders or the Majority Lenders, as the case may
be, with respect to any actions or approvals which, by the terms of this
Agreement or of any of the Loan Documents, Administrative Agent is permitted or
required to take or to grant without
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instructions from any Lenders, and if such instructions are promptly requested,
Administrative Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from taking any action or withholding
any approval under any of the Loan Documents until it shall have received such
instructions from the Requisite Lenders or the Majority Lenders, as applicable.
Without limiting the foregoing, no Lender or Designated Bid Lender shall have
any right of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or refraining from acting under this Agreement or
any of the other Loan Documents in accordance with the instructions of the
Requisite Lenders or, where applicable, the Majority Lenders or all Lenders.
Administrative Agent shall promptly notify each Lender at any time that the
Majority Lenders or the Requisite Lenders, as the case may be, have instructed
Administrative Agent to act or refrain from acting pursuant hereto.
11.10.5 Each Lender and Designated Bid Lender agrees that any action
taken by Administrative Agent at the direction or with the consent of the
Majority Lenders or the Requisite Lenders in accordance with the provisions of
this Agreement or any Loan Document, and the exercise by Administrative Agent at
the direction or with the consent of the Majority Lenders or the Requisite
Lenders, as applicable, of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all Lenders and Designated Bid Lenders, except for actions
specifically requiring the approval of a greater number of Lenders or of Lenders
holding a greater aggregate interest in the Commitments or the outstanding
Loans, as the case may be. All communications from Administrative Agent to
Lenders requesting Lenders' determination, consent, approval or disapproval (i)
shall be given in the form of a written notice to each Lender (in its own
capacity and, if such Lender is a Designating Lender, in its capacity as
administrative agent for its Designated Bid Lender), (ii) shall be accompanied
by a description of the matter or thing as to which such determination,
approval, consent or disapproval is requested, or shall advise each Lender where
such matter or thing may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a Lender
and to the extent not previously provided to such Lender, written materials and
a summary of all oral information provided to Administrative Agent by Borrower
in respect of the matter or issue to be resolved, and (iv) shall include
Administrative Agent's recommended course of action or determination in respect
thereof. Each Lender shall reply (on its own behalf and on behalf of and as
administrative agent for its Designated Bid Lender, if any) promptly, but in any
event within ten (10) Business Days (the "Lender Reply Period"). Unless a Lender
shall give written notice to Administrative Agent that it (or, if applicable,
its Designated Bid Lender) objects to the recommendation or determination of
Administrative Agent (together with a written explanation of the reasons behind
such objection) within the Lender Reply Period, such Lender or its Designated
Bid Lender, as the case may be, shall be deemed to have approved of or consented
to such recommendation or determination. With respect to decisions requiring
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the approval of the Majority Lenders, the Requisite Lenders or all Lenders,
Administrative Agent shall submit its recommendation or determination for
approval of or consent to such recommendation or determination to all Lenders
and upon receiving the required approval or consent shall follow the course of
action or determination recommended to Lenders by Administrative Agent or such
other course of action recommended by the Requisite Lenders or the Majority
Lenders, as applicable, and each non-responding Lender, and its Designated Bid
Lender, if any, shall be deemed to have concurred with such recommended course
of action.
11.10.6 Nothing contained in this Article XI, or in any other
provision of the Loan Documents, is intended to confer upon any Designated Bid
Lender the right to approve or consent to any matter other than a matter on
which Designated Bid Lenders are entitled to vote as described in Section
11.12.3.
11.11. Agency Provisions Relating to Certain Enforcement Actions. Should
Administrative Agent (i) employ counsel for advice or other representation
(whether or not any suit has been or shall be filed) with respect to any of the
Loan Documents, or (ii) commence any proceeding or in any way seek to enforce
its rights or remedies under the Loan Documents, each Lender, upon demand
therefor from time to time, shall contribute its share (based on its Pro Rata
Share) of the reasonable costs and/or expenses of any such advice or other
representation, enforcement or acquisition, including, but not limited to, fees
of receivers, court costs and fees and expenses of attorneys to the extent not
otherwise reimbursed by Borrower. Any loss of principal and interest resulting
from any Event of Default shall be shared by Lenders and Designated Bid Lenders
in accordance with their respective pro rata shares (determined on the basis of
its outstanding Bid Loans and on its Pro Rata Share of all outstanding Committed
Loans) of all Loans outstanding as of the date the Termination Date has occurred
and all outstanding Loans become, or are declared to be, due and payable in
accordance with the Loan Documents (subject to the provisions of Section 11.13);
provided, however, that the foregoing provisions shall not prohibit any
Designating Lender from agreeing with its Designated Bid Lender that, as between
such Designating Lender and Designated Bid Lender, such Designating Lender shall
bear any losses otherwise allocable to its Designated Bid Lender, and such
Designating Lender shall be permitted to pay over to its Designated Bid Lender
any amount to which such Designating Lender would be entitled hereunder.
11.12. Assignments and Participations.
11.12.1 Subject to Section 2.9, after first obtaining the approval
of Administrative Agent and (unless any Unmatured Event of Default or Event of
Default has occurred and is continuing) Borrower, which approvals will not be
unreasonably withheld, each Lender may assign, to one or more Eligible
Assignees, all or a portion of its rights and obligations under this Agreement
(including without limitation all or a
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portion of its Commitment and the Committed Loans owing to it) and other Loan
Documents other than with respect to outstanding Bid Loans made by such Lender;
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of the assigning Lender's rights and obligations under
this Agreement and other Loan Documents (excluding any rights or obligations
with respect to outstanding Bid Loans), and the assignment shall cover the same
percentage of such Lender's Commitment and Committed Loans, (ii) unless
Administrative Agent and (unless an Unmatured Event of Default or Event of
Default has occurred and is continuing) Borrower otherwise consent, the
aggregate amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Assumption with respect to such assignment) shall in no event be less than
Fifteen Million Dollars ($15,000,000) and shall be an integral multiple of One
Million Dollars ($1,000,000), unless such assignment is an assignment of the
assigning Lender's entire remaining Commitment, (iii) at all times prior to its
resignation or replacement, Administrative Agent's Commitment shall be equal to
or exceed the Commitment of each other Lender, (iv) the parties to each such
assignment shall execute and deliver to Administrative Agent, for its approval
and acceptance (and, unless an Unmatured Event of Default or Event of Default
has occurred and is continuing, for acknowledgement by Borrower), an Assignment
and Assumption, and (v) Administrative Agent shall receive from the assignor or
assignee a processing fee of Three Thousand Dollars ($3,000). Unless
Administrative Agent or Borrower gives written notice to the assigning Lender
that it objects to the proposed assignment (together with a written explanation
of the reasons behind such objection) within ten (10) Business Days following
receipt of the assigning Lender's written request for approval of the proposed
assignment, Administrative Agent or Borrower, as the case may be, shall be
deemed to have approved such assignment. Upon such execution, delivery, approval
and acceptance, and upon the effective date specified in the applicable
Assignment and Assumption, (X) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
(and assumed by) it pursuant to such Assignment and Assumption, have the rights
and obligations of a Lender hereunder, and (Y) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it (and assumed by its assignee) pursuant to such Assignment and Assumption,
relinquish its rights and be released from its obligations under this Agreement.
11.12.2 By executing and delivering an Assignment and Assumption,
the assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Assumption, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document or any other instrument or
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document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the REIT, Borrower or any UPP Subpartnership or the
performance or observance by the REIT, Borrower or any Guarantor Subpartnership
of any of their respective obligations under any Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Article V or delivered pursuant to Article
VI to the date of such assignment and such other Loan Documents and other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Assumption; (iv) such
assignee will, independently and without reliance upon Administrative Agent,
such assigning Lender 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; (v) such
assignee appoints and authorizes Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to Administrative Agent
by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
11.12.3
(a) Any Lender may at any time, with the prior written consent of
Borrower and Administrative Agent, which consent shall not be
unreasonably withheld, designate one Designated Bid Lender to fund Bid
Loans on behalf of such Designating Lender subject to the terms of this
Section 11.12.3, and the provisions of Sections 11.12.1 and 11.12.2
shall not apply to such designation, except that no Designating Lender
shall enter into any agreement under which its Designated Bid Lender has
rights to approve any amendment, consent or waiver with respect to any
Loan Document, except to the extent such amendment, consent or waiver
would amend any right of Designated Bid Lenders or would (i) increase
the amount of the Bid Loan Facility at any time while any Bid Loan made
by such Designated Bid Lender is outstanding, (ii) extend the maturity
date of any Bid Loan made by such Designated Bid Lender, or (iii)
decrease the interest rate applicable to any Bid Loan made by such
Designated Bid Lender. No Lender may designate more than one Designated
Bid Lender at any one time, and, following the termination of a
designation with respect to one Designated Bid Lender, no new Designated
Bid Lender may be designated until all outstanding Bid Loans made by the
prior Designated Bid Lender have been paid in full. The parties to each
such designation shall execute and deliver to Borrower and
Administrative Agent for their acceptance a Designation Agreement, and,
upon Administrative Agent's receipt of (A) an appropriately completed
Designation Agreement (1)
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executed by a Designating Lender and a designee representing that it is
a Designated Bid Lender and (2) accepted by Borrower, and (B) a
processing fee in the amount of One Thousand Five Hundred Dollars
($1,500), Administrative Agent shall accept such Designation Agreement
and register such Designated Bid Lender as a Designated Bid Lender, and
give prompt notice thereof to Borrower, whereupon: from and after the
effective date specified in the Designation Agreement, the Designated
Bid Lender shall become a party to this Agreement, as a Designated Bid
Lender, with (X) a right to make Bid Loans on behalf of its Designating
Lender pursuant to Section 2.1.1(b)(iii) with respect to any Competitive
Bid of such Designating Lender that is accepted in whole or in part by
Borrower, and (Y) the other rights, and the obligations, provided herein
and therein, subject to the limitation, however, that, notwithstanding
the assumption by a Designated Bid Lender of certain of the obligations
of its Designating Lender (but without limiting the Designating Lender's
obligations under the following paragraph (b)), no Designated Bid Lender
shall be required to make payments with respect to any of its
obligations under this Agreement or any other Loan Document except to
the extent of excess cash flow of such Designated Bid Lender (i.e., cash
that is not otherwise required to repay obligations of such Designated
Bid Lender that are then due and payable).
(b) Notwithstanding any other provision of this Agreement or any
other Loan Document: regardless of any designation of a Designated Bid
Lender hereunder, the Designating Lender making such designation (i)
shall be and remain obligated to Borrower, Administrative Agent and each
of the other Lenders and other Designated Bid Lenders for each and every
one of the obligations of the Designating Lender and its Designated Bid
Lender with respect to this Agreement or any other Loan Document
(including, without limitation, any indemnification obligations and any
other obligation to pay any amount otherwise payable to Borrower by the
Designated Bid Lender); and (ii) shall indemnify, defend and hold
Administrative Agent, Borrower, each Lender and each Designated Bid
Lender harmless from and against any and all losses, costs, expenses
(including reasonable attorneys' fees and the cost of any services of
in-house counsel) and liabilities incurred by any such Person in
connection with or arising from (A)(1) the non-performance by such
Designating Lender's Designated Bid Lender of any obligation assumed by
the Designated Bid Lender under its Designation Agreement, (2) any other
act or omission of the Designated Bid Lender committed in violation of
the provisions of any Loan Document, or (3) the failure of any
representation or warranty made by such Designating Lender's Designated
Bid Lender for the benefit of Administrative Agent, Borrower, any other
Lender or any other Designated Bid Lender to be true and correct in all
material respects, or (B) such Designating Lender's nonperformance of
any obligation owed to its Designated Bid Lender under the Designation
Agreement or any other agreement
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between such Designating Lender and its Designated Bid Lender with
respect to the transactions contemplated hereby.
(c) Notwithstanding any designation hereunder, Borrower and
Administrative Agent shall continue to deal solely and directly with the
Designating Lender in connection with the Loans (including any Bid Loans
made by such Designating Lender's Designated Bid Lender) and the Loan
Documents. Each Designating Lender shall serve as the administrative
agent of its Designated Bid Lender and shall on behalf of the Designated
Bid Lender: (i) receive any and all payments made for the benefit of the
Designated Bid Lender (and Borrower's and Administrative Agent's
obligation to make any payment to the Designated Bid Lender shall be
satisfied upon payment of such amount to its Designating Lender for the
benefit of such Designated Bid Lender, without any duty to see to the
application thereof by such Designating Lender), and (ii) give and
receive all communications and notices and take all actions under any
Loan Document, including, without limitation, votes, approvals, waivers,
consents and amendments under or relating to this Agreement and the
other Loan Documents; and any notice or other communication so delivered
to a Designating Lender shall be deemed validly delivered to its
Designated Bid Lender, without any duty on the part of Borrower or
Administrative Agent to verify whether such notice or other
communication is actually delivered by such Designating Lender to its
Designated Bid Lender. Administrative Agent shall have no responsibility
for, and shall not incur liability to any Designated Bid Lender arising
out of, the disposition by such Designated Bid Lender's Designating
Lender of any funds or notice or other communication delivered to such
Designating Lender for the account of such Designated Bid Lender in
accordance herewith. Any notice, communication, vote, approval, waiver,
consent or amendment of or with respect to any Loan Document that is
delivered or executed on behalf of any Designated Bid Lender shall be
signed by its Designating Lender as administrative agent for the
Designated Bid Lender (whether or not noted as such thereon), and need
not be signed by the Designated Bid Lender on its own behalf. Borrower,
Administrative Agent, Lenders and the other Designated Bid Lenders may
rely thereon without any requirement that the Designated Bid Lender sign
or acknowledge the same. No Designated Bid Lender may assign or transfer
all or any portion of its interest hereunder or under any other Loan
Documents, other than (X) an assignment to the Designating Lender which
originally designated such Designated Bid Lender, or (Y) in accordance
with the provisions of Section 11.12.6 or Section 11.12.8.
(d) A Designated Bid Lender shall not have any right to the
payment of any amount under the Loan Documents other than with respect
to (i) principal of and interest (including, to the extent, interest at
the Default Rate) on Bid Loans made by such Designated Bid Lender, (ii)
the indemnity obligations of Borrower under Section 12.2, and (iii)
compensatory amounts payable by Borrower pursuant
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to Section 2.4.8(c) in respect of Bid Loans made by such Designated Bid
Lender that are paid prior to the last day of the Bid Loan Interest
Period applicable thereto; and all other amounts payable by Borrower
hereunder or under any other Loan Document shall be determined as if
such Designated Bid Lender's Designating Lender had not made such
designation.
(e) Each of Borrower, Lenders, Designated Bid Lenders and
Administrative Agent hereby agrees that it will not institute against
any Designated Bid Lender, or join with any other Person in instituting
against any Designated Bid Lender, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or
state bankruptcy or similar law, at any time prior to the date that is
one year and one day after payment in full of the latest maturing
commercial paper note issued by such Designated Bid Lender.
11.12.4 Administrative Agent shall maintain, at its address
referred to on the counterpart signature pages hereof, a copy of each Assignment
and Assumption and Designation Agreement delivered to and accepted by it and
shall record in the Loan Account the names and addresses of (i) each Lender and
the Commitment of, and principal amount of the Loans owing to, such Lender from
time to time and (ii) each Designated Bid Lender and the principal amount of the
Bid Loans owing to such Designated Bid Lender from time to time. Borrower,
Administrative Agent, Lenders and Designated Bid Lenders may treat each Person
whose name is recorded in the Loan Account as a Lender or Designated Bid Lender,
as the case may be, as such hereunder for all purposes of this Agreement.
11.12.5
(a) Upon its receipt of an Assignment and Assumption executed by
an assigning Lender and an assignee, Administrative Agent shall, if such
Assignment and Assumption has been properly completed and is in
substantially the form of Exhibit A, (i) accept such Assignment and
Assumption and (unless an Unmatured Event of Default or Event of Default
has occurred and is continuing) obtain the acknowledgment of Borrower,
(ii) record the information contained therein in the Loan Account, and
(iii) give prompt notice thereof to Borrower. Upon request, Borrower
will execute and deliver to Administrative Agent an appropriate
replacement promissory note or replacement promissory notes in favor of
each assignee (and assignor, if such assignor is retaining a portion of
its Commitment and Loans) reflecting such assignee's (and assignor's)
Pro Rata Share(s) of the Committed Facility, as well as any then
outstanding Bid Loans made by the assigning Lender and any Bid Loans
made in the future, by the assigning Lender or its assignee,
respectively; and Administrative Agent shall promptly send each such
replacement note to the relevant payee. Upon execution and delivery of
such replacement promissory notes the original promissory note or
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notes evidencing all or a portion of the Commitments and Loans being
assigned shall be cancelled and returned to Borrower.
(b) Upon its receipt of a Designation Agreement executed by a
Designating Lender and its Designated Bid Lender and accepted by
Borrower, Administrative Agent shall, if such Designation Agreement has
been properly completed and is in substantially the form of Exhibit K,
(i) accept such Designation Agreement, (ii) record the information
contained therein in the Loan Account, and (iii) give prompt notice
thereof to Borrower.
11.12.6 Each Lender and Designated Bid Lender may sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including without limitation
all or a portion of its Commitment (if applicable) and the Loans, including Bid
Loans, owing to it) and other Loan Documents; provided, however, that (subject
to the provisions of Section 11.12.3 with respect to dealings between
Administrative Agent and Lenders and any Designated Bid Lender): (i) such
Lender's or Designated Bid Lender's obligations under this Agreement (including
without limitation, in the case of a Lender, its Commitment to Borrower
hereunder) shall remain unchanged; (ii) (A) such Lender or (B) in the case of a
participation by a Designated Bid Lender, such Designated Bid Lender and its
Designating Lender, shall remain solely responsible to the other parties hereto
for the performance of such obligations; (iii) Borrower, Administrative Agent
and the other Lenders and Designated Bid Lenders shall continue to deal solely
and directly with such Lender or Designated Bid Lender in connection with such
Lender's or Designated Bid Lender's rights and obligations under this Agreement
(including with respect to any matters on which such participant may be entitled
to vote in accordance with this Section 11.12.6, and with regard to any and all
payments to be made under this Agreement; (iv) the governing participation
agreement shall not entitle the holder of any such participation to vote with
respect to any matter under this Agreement or any other Loan Document except for
(A) in the case of a participation by a Lender that includes an interest in such
Lender's Commitment, (1) increases in the Committed Facility or the Bid Loan
Facility, (2) extensions of the Termination Date or of the maturity date of any
Bid Loan in which such participant holds an interest, and (3) decreases in the
interest rates described in this Agreement; and (B) in the case of a
participation that is limited to an interest in one or more Bid Loans, (1)
increases in the amount of the Bid Loan Facility at any time while any Bid Loan
in which such participant has an interest is outstanding, (2) extensions of the
maturity date of any Bid Loan in which such participant holds an interest, and
(3) decreases in the interest rate applicable to any Bid Loan in which such
participant has an interest.
11.12.7 Borrower will use reasonable efforts to cooperate with
Administrative Agent, Lenders and Designated Bid Lenders in connection with the
assignment of interests under this Agreement, the designation of Designated Bid
Lenders
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or the sale of participations herein; provided, however, that Borrower shall
have no obligation to pay the processing fees due Administrative Agent in
respect of any assignment or designation.
11.12.8 Anything in this Agreement to the contrary notwithstanding,
and without the need to comply with any of the formal or procedural requirements
of this Agreement, including this Section 11.12, (i) any Lender or Designated
Bid Lender may at any time and from time to time pledge and assign all or any
portion of its rights under all or any of the Loan Documents to a Federal
Reserve Bank, and (ii) any Designated Bid Lender may at any time and from time
to time pledge its interest in Borrower's obligations under the Loan Documents
in respect of any Bid Loan in favor of any Liquidity Provider qualifying as such
with respect to the Bid Loan so pledged; provided, in any such case, that no
such pledge or assignment shall release such Lender or Designated Bid Lender (or
its Designating Bank), as the case may be, from its obligations thereunder. To
facilitate any such pledge or assignment to a Federal Reserve Bank,
Administrative Agent shall, at the request of such Lender or Designated Bid
Lender, enter into a letter agreement with the Federal Reserve Bank in
substantially the form of the exhibit to Appendix C to the Federal Reserve Bank
of New York Operating Circular No. 10.
11.12.9 Anything in this Agreement to the contrary notwithstanding,
any Lender may assign all or any portion of its rights and obligations under
this Agreement (including, without limitation, with respect to outstanding Bid
Loans, but only if such assignee is also being assigned, or has previously been
assigned, all or some portion of such Lender's Commitment), to another branch or
Affiliate of such Lender without first obtaining the approval of Administrative
Agent and Borrower, provided that (i) at the time of such assignment such Lender
is not a Defaulting Lender, (ii) such Lender gives Administrative Agent and
Borrower at least fifteen (15) days' prior written notice of any such
assignment, (iii) the parties to each such assignment execute and deliver to
Administrative Agent an Assignment and Assumption (modified as necessary to
reflect any assignment of an interest in Bid Loans), and (iv) Administrative
Agent receives from assignor a processing fee of Three Thousand Dollars
($3,000).
11.13. Ratable Sharing. Subject to Sections 11.3 and 11.4, Lenders and
Designated Bid Lenders agree among themselves that (a) (i) unless the
Termination Date has occurred and all outstanding Loans have become, or have
been declared, due and payable in full: with respect to all amounts received by
them (whether received by voluntary payment, by counterclaim or cross action or
by the enforcement of any or all of the Obligations) which are applicable to the
payment of the principal, interest, fees or any other amount payable under the
Loan Documents, equitable adjustment will be made so that, in effect, all such
amounts will be shared among them ratably in accordance with their pro rata
shares of the amount to be so applied, based, in each case, on the ratio of (A)
the principal, interest, fees or other amount then due and payable to each
Lender or
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Designated Bid Lender, to (B) the aggregate amount then due and payable to all
of Lenders and Designated Bid Lenders in respect of principal, interest, fees or
such other amount, as the case may be (and, for purposes of the allocation of
payments of principal in respect of the Committed Loans, a portion of such
payment equal to each Lender's Pro Rata Share thereof shall be deemed to be due
and payable to such Lender as of the date of any such payment); and (ii) if the
Termination Date has occurred and all outstanding Loans have become, or have
been declared, due and payable in full: with respect to all amounts received by
them (whether received by voluntary payment, by counterclaim or cross action or
by the enforcement of any or all of the Obligations) which are applicable to the
payment of the Obligations, equitable adjustment will be made so that, in
effect, all such amounts will be shared among them ratably in accordance with
their pro rata shares of the amount to be so applied, based, in each case, on
the ratio of the aggregate principal amount of all outstanding Loans owed to
each Lender or Designated Bid Lender to the aggregate principal amount of all of
the outstanding Loans; and (b) if any of them shall, by voluntary payment or by
the exercise of any right of counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it which is
greater than its share of the payments on account of the Obligations (determined
in accordance with the preceding clause (a)), the one receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest and
participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all such
recoveries with respect to such Obligations shall be applied ratably in
accordance with the preceding clause (a); provided, that if all or part of such
excess payment received by the purchasing party is thereafter recovered from it,
those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to that party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. Borrower
agrees that any Lender or Designated Bid Lender so purchasing a participation
from another Lender or Designated Bid Lender pursuant to this Section 11.13 may,
to the fullest extent permitted by law, exercise all its rights of payment with
respect to such participation as fully as if such Lender or Designated Bid
Lender were the direct creditor of Borrower in the amount of such participation.
11.14. Delivery of Documents. Administrative Agent shall as soon as
reasonably practicable distribute to each Lender (for itself or for transmittal
to its Designated Bid Lender, as applicable) at such Lender's primary address
set forth on the appropriate counterpart signature page hereof, or at such other
address as a Lender may request in writing, (i) all documents to which such
Lender or its Designated Bid Lender is a party or of which such Lender or its
Designated Bid Lender is a beneficiary set forth in Section 4.1, (ii) all
documents of which Administrative Agent receives copies from Borrower pursuant
to Sections 6.1 and 12.6, (iii) all other documents or information which
Administrative Agent is required to send to Lenders and Designated Bid Lenders
pursuant to the terms of this Agreement, (iv) other information or documents
received by
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Administrative Agent at the request of any Lender (on its own behalf or on
behalf of, and as administrative agent for, its Designated Bid Lender), and (v)
all notices received by Administrative Agent pursuant to Section 6.2. In
addition, within fifteen (15) Business Days after receipt of a request in
writing from a Lender for written information or documents provided by or
prepared by Borrower, the REIT or any UPP Subpartnership or Majority
Partnership, Administrative Agent shall deliver such written information or
documents to such requesting Lender if Administrative Agent has possession of
such written information or documents in its capacity as Administrative Agent or
as a Lender.
11.15. Notice of Events of Default. Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Unmatured Event of
Default or Event of Default (other than nonpayment of principal of or interest
on the Loans) unless Administrative Agent has received notice in writing from a
Lender or Borrower referring to this Agreement or the other Loan Documents,
describing such event or condition and expressly stating that such notice is a
notice of an Unmatured Event of Default or Event of Default. Should
Administrative Agent receive such notice of the occurrence of an Unmatured Event
of Default or Event of Default, or should Administrative Agent send Borrower a
notice of Unmatured Event of Default or Event of Default, Administrative Agent
shall promptly give notice thereof to each Lender.
ARTICLE XII
MISCELLANEOUS
12.1. Expenses.
12.1.1 Generally. Borrower agrees upon demand to pay, or reimburse
Administrative Agent for, all of Administrative Agent's reasonable external
audit, legal, appraisal, valuation and investigation expenses and for all other
reasonable out-of-pocket costs and expenses of every type and nature (including,
without limitation, the reasonable fees, expenses and disbursements of
Administrative Agent's internal appraisers, environmental advisors or legal
counsel) incurred by Administrative Agent at any time (whether prior to, on or
after the date of this Agreement) in connection with (i) its own audit and
investigation of Borrower and the Unencumbered Pool Properties; (ii) the
negotiation, preparation and execution of this Agreement (including, without
limitation, the satisfaction or attempted satisfaction of any of the conditions
set forth in Article IV) and the other Loan Documents and the making of the
Loans; (iii) the review and, if applicable, acceptance of additional
Unencumbered Pool Properties, including reasonable attorneys' fees and costs
incurred in connection therewith; (iv) administration of this Agreement, the
other Loan Documents and the Loans, including, without limitation, consultation
with attorneys in connection therewith; and (v) the protection, collection or
enforcement of any of the Obligations.
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12.1.2 After Event of Default. Borrower further agrees to pay, or
reimburse Administrative Agent and Lenders, for all reasonable out-of-pocket
costs and expenses, including without limitation reasonable attorneys' fees and
disbursements incurred by Administrative Agent or Lenders after the occurrence
of an Event of Default (i) in enforcing any Obligation or exercising or
enforcing any other right or remedy available by reason of such Event of
Default; (ii) in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or in
any insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to Borrower, the REIT or any
UPP Subpartnership and related to or arising out of the transactions
contemplated hereby; or (iv) in taking any other action in or with respect to
any suit or proceeding (whether in bankruptcy or otherwise).
12.2. Indemnity. Borrower further agrees to defend, protect, indemnify
and hold harmless Administrative Agent, each and all of Lenders and Designated
Bid Lenders, each of their respective Affiliates and participants and each of
the respective officers, directors, employees, agents, attorneys and consultants
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article IV) of each of the foregoing (collectively called the "Indemnitees")
from and against any and all Liabilities and Costs imposed on, incurred by, or
asserted against such Indemnitees (whether based on any federal or state laws or
other statutory regulations, including, without limitation, securities and
commercial laws and regulations, under common law or in equity, and based upon
contract or otherwise, including any Liabilities and Costs arising as a result
of a "prohibited transaction" under ERISA to the extent arising from or in
connection with the past, present or future operations of the REIT, Borrower or
any UPP Subpartnership or their respective predecessors in interest) in any
manner relating to or arising out of this Agreement or the other Loan Documents,
or any act, event or transaction related or attendant thereto, the making of and
participation in the Loans and the management of the Loans, or the use or
intended use of the proceeds of the Loans (collectively, the "Indemnified
Matters"); provided, however, that Borrower shall have no obligation to (i) an
Indemnitee hereunder with respect to (A) matters for which such Indemnitee has
been compensated pursuant to or for which an exemption is provided in Section
2.4.7 or any other provision of this Agreement, and (B) Indemnified Matters to
the extent caused by or resulting from the willful misconduct or gross
negligence of that Indemnitee, as determined by a court of competent
jurisdiction; or (ii) any Designating Lender or Designated Bid Lender (or other
Indemnitee who is an Indemnitee solely by reason of its relationship with such
Designating Lender or Designated Bid Lender) in respect of any matter with
respect to which Borrower is entitled to be indemnified pursuant to Section
11.12.3(b) or in respect of any act or omission by such Designating Lender or
its Designated Bid Lender under their Designation Agreement or any other
agreement entered into between them in connection therewith. To the extent that
the undertaking to indemnify, pay and hold
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harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
12.3. Change in Accounting Principles. Except as otherwise provided
herein, if any changes in accounting principles from those used in the
preparation of the most recent financial statements delivered to Administrative
Agent pursuant to the terms hereof are hereinafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
REIT, Borrower or any UPP Subpartnership with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the financial covenants, standards or terms found
herein, the parties hereto agree to enter into negotiations in order to amend
such provisions so as to equitably reflect such changes with the desired result
that the criteria for evaluating the financial condition of Borrower shall be
the same after such changes as if such changes had not been made; provided,
however, that no change in GAAP that would affect the method of calculation of
any of the financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to
Administrative Agent and the Requisite Lenders, to so reflect such change in
accounting principles.
12.4. Amendments and Waivers. (i) No amendment or modification of any
provision of this Agreement shall be effective without the written agreement of
the Requisite Lenders (after notice to all Lenders) and Borrower (except for
amendments to Section 11.4.1 or Section 11.4.2, which do not require the consent
of Borrower), and (ii) no termination or waiver of any provision of this
Agreement, or consent to any departure by Borrower therefrom, shall in any event
be effective without the written concurrence of the Requisite Lenders (after
notice to all Lenders), which the Requisite Lenders shall have the right to
grant or withhold at their sole discretion, except that:
12.4.1 The following amendments, modifications or waivers shall
require the consent of all Lenders:
(a) increasing the Commitments or any Lender's Commitment;
(b) changing the principal amount or final maturity of the
Committed Loans or of any Bid Loan;
(c) reducing the interest rates applicable to any of the Loans;
(d) reducing the rates on which fees payable pursuant hereto are
determined;
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(e) forgiving or delaying any amount payable or receivable under
Article II (other than late fees);
(f) changing the definition of "Requisite Lenders", "Committed
Facility", "Bid Loan Limit", "Loan Availability", "Majority Lenders",
"Pro Rata Shares" or "Unencumbered Pool Value";
(g) changing any provision contained in this Section 12.4;
(h) releasing any obligor under any Loan Document;
(i) consent to assignment by Borrower of all of its duties and
Obligations hereunder pursuant to Section 12.14;
(j) amending the ratio of Total Liabilities to Gross Asset Value
that Borrower is required to maintain pursuant to Section 9.2; waiving
any failure of Borrower to maintain such ratio; or amending the
definitions of "Total Liabilities", "Gross Asset Value", "Cash
Equivalents", "EBIDA", any defined term used in the definition of
"EBIDA", or "Permitted Excess Period"; and
(k) amending the definition of "Unsecured Liabilities" or "Net
Operating Income", or of any defined term used in any of the foregoing
definitions; amending the Aggregate Occupancy Rate that Borrower is
required to maintain with respect to the Unencumbered Pool Properties
pursuant to Section 9.7 or waiving any failure of Borrower to maintain
such Aggregate Occupancy Rate; or amending or waiving any portion of
Section 2.1.1 or Section 2.1.3.
12.4.2 No amendment, modification, termination or waiver of any
provision of Article XI or any other provision referring to Administrative Agent
shall be effective without the written concurrence of Administrative Agent, but
only if such amendment, modification, termination or waiver alters the
obligations or rights of Administrative Agent.
Any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given. No notice to or demand on Borrower
in any case shall entitle Borrower to any other further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this Section 12.4 shall be binding on
each assignee, transferee or recipient of Administrative Agent's or any Lender's
Commitment under this Agreement or the Loans at the time outstanding.
12.5. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of
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such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Unmatured Event of Default if such action
is taken or condition exists, and if a particular action or condition is
expressly permitted under any covenant, unless expressly limited to such
covenant, the fact that it would not be permitted under the general provisions
of another covenant shall not constitute an Event of Default or Unmatured Event
of Default if such action is taken or condition exists.
12.6. Notices and Delivery. Unless otherwise specifically provided
herein, any consent, notice or other communication herein required or permitted
to be given shall be in writing and may be personally served, telecopied or sent
by courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a telecopy (or
on the next Business Day if such telecopy is received on a non-Business Day or
after 5:00 p.m. (at the office of the recipient) on a Business Day) or four (4)
Business Days after deposit in the United States mail (registered or certified,
with postage prepaid and properly addressed). Notices to Administrative Agent
pursuant to Article II shall not be effective until received by Administrative
Agent. For the purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this Section 12.6) shall
be as set forth below each party's name on the signature pages hereof, or, as to
each party, at such other address as may be designated by such party in a
written notice to all of the other parties. All deliveries to be made to
Administrative Agent for distribution to Lenders (or their respective Designated
Bid Lenders) shall be made to Administrative Agent at Lenders' respective
addresses specified for notice on the signature page hereto and in addition, a
sufficient number of copies of each such delivery shall be delivered to
Administrative Agent for delivery to each Lender at the address specified for
deliveries on the signature page hereto or such other address as may be
designated by Administrative Agent in a written notice.
12.7. Survival of Warranties, Indemnities and Agreements. All
agreements, representations, warranties and indemnities made or given herein
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder, and such
indemnities shall survive termination hereof.
12.8. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure
or delay on the part of Administrative Agent, any Lender or any Designated Bid
Lender in the exercise of any power, right or privilege under any of the Loan
Documents shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under the Loan Documents are cumulative to and not exclusive
of any rights or remedies otherwise available.
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12.9. Payments Set Aside.
To the extent that Borrower makes a payment or payments to Administrative Agent,
Lenders or Designated Bid Lenders, or Administrative Agent, Lenders or
Designated Bid Lenders exercise their rights of setoff, and such payment or
payments or the proceeds of such setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then to the
extent of such recovery, the Obligation or part thereof originally intended to
be satisfied, and all rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
setoff had not occurred. Each Lender severally agrees to pay to Administrative
Agent upon demand (i) in the case of an amount received in respect of a Bid
Loan, its allocable share of any amount so recovered from or repaid by
Administrative Agent, and (ii) in the case of any other amount received under
the Loan Documents, its Pro Rata Share of any amount so recovered from or repaid
by Administrative Agent; and each Designated Bid Lender agrees to pay such
Designated Bid Lender's allocable share of any amount so recovered from or
repaid by Administrative Agent in respect of any Bid Loan made by such
Designated Bid Lender; provided, however, that the foregoing clause shall not
prohibit any Designating Lender from agreeing with its Designated Bid Lender
that, as between such Designating Lender and Designated Bid Lender, such
Designating Lender shall pay to Administrative Agent any amount that would
otherwise be due to Administrative Agent under this Section 12.9, and such
Designated Bid Lender shall not be liable for any payment of any such amount to
the extent that its Designating Lender makes such payment.
12.10. Severability. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby, provided,
however, that if the rates of interest or any other amount payable hereunder, or
the collectability thereof, are declared to be or become invalid, illegal or
unenforceable, Lenders' obligations to make Loans shall not be enforceable.
12.11. Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
12.12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
12.13. Limitation of Liability. To the extent permitted by applicable
law, no claim may be made by Borrower, any Lender or Designated Bid Lender or
any other Person against Administrative Agent, Syndication Agent, Documentation
Agent or any
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Lender or Designated Bid Lender, or the affiliates, directors, officers,
employees, attorneys or agents of any of them, for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith; and Borrower and each Lender and Designated Bid Lender
hereby waive, release and agree not to ▇▇▇ upon any claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor, provided that if a Lender or Designated Bid Lender refuses to fund a Loan
and a court of competent jurisdiction finds that such refusal was without
justification and in bad faith, such Lender or Designated Bid Lender (and, in
the case of a Designated Bid Lender, its Designating Lender) may be liable to
Borrower for Borrower's reasonable and foreseeable damages resulting from such
refusal to fund.
12.14. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of Administrative Agent, Lenders and
Designated Bid Lenders. The terms and provisions of this Agreement shall inure
to the benefit of any assignee or transferee of the Loans and the Commitments of
Lenders under this Agreement, and in the event of such transfer or assignment,
the rights and privileges herein conferred upon Administrative Agent and Lenders
shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. Borrower's rights or any interest
therein hereunder, and Borrower's duties and Obligations hereunder, shall not be
assigned without the consent of all Lenders.
12.15. Consent to Jurisdiction and Service of Process; Waiver of Jury
Trial. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE, AND ALL JUDICIAL PROCEEDINGS
BROUGHT BY BORROWER WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
SHALL BE, BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION HAVING
SITUS WITHIN THE BOUNDARIES OF THE FEDERAL COURT DISTRICT OF THE NORTHERN
DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
BORROWER ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY
AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY FROM WHICH NO APPEAL
HAS BEEN TAKEN OR IS AVAILABLE. BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO ITS NOTICE ADDRESS SPECIFIED ON THE SIGNATURE PAGES HEREOF. BORROWER,
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ADMINISTRATIVE AGENT AND LENDERS EACH IRREVOCABLY WAIVES (i) TRIAL BY JURY IN
ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, AND (ii) ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET
FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY
LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
12.16. Counterparts; Effectiveness; Inconsistencies. This Agreement and
any amendments, waivers, consents or supplements may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such together shall constitute but one and the same
instrument. This Agreement shall become effective when Borrower, the initial
Lenders and Administrative Agent have duly executed and delivered execution
pages of this Agreement to each other (delivery by Borrower to Lenders and by
any Lender to Borrower and any other Lender being deemed to have been made by
delivery to Administrative Agent). Administrative Agent shall send written
confirmation of the Closing Date to Borrower and each other Lender promptly
following the occurrence thereof. Effective as of the Closing Date, the
commitments of the Original Lenders under the Existing Facility shall terminate,
and all accrued and unpaid obligations of Borrower under the Existing Facility
shall be due and payable in full. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually and directly inconsistent with the terms and conditions of any other
Loan Document, this Agreement shall govern.
12.17. Construction.
The parties acknowledge that each party and its counsel have reviewed and
revised this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or exhibits
hereto.
12.18. Obligations Unsecured.
It is the intent of the parties that the Obligations, and the obligations of the
REIT and the Guarantor Subpartnerships under their respective Guaranties, shall
constitute unsecured obligations of Borrower, the REIT and each Guarantor
Subpartnership, respectively. Neither the restrictions and prohibitions set
forth herein with respect to the creation, incurrence, assumption or existence
of any Lien on any Property of Borrower or any
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other Person (including, without limitation, Unencumbered Pool Properties and
interests in Persons owning any Unencumbered Pool Property), nor those set forth
in any other Loan Document, are intended to create or constitute a Lien of any
nature upon any Property of Borrower, the REIT or any other Person, and no such
restriction or prohibition shall be deemed to constitute any such Lien. This
Section 12.18 shall not be deemed to prevent Administrative Agent, any Lender or
any Designated Bid Lender from obtaining a Lien as security for the Obligations
at any time hereafter pursuant to a mutual agreement among the parties hereto
expressly providing for such Lien or during the continuance of any Event of
Default.
12.19. Entire Agreement.
This Agreement, taken together with all of the other Loan Documents and all
certificates and other documents delivered by Borrower to Administrative Agent
(including documents incorporating separate agreements relating to the payment
of fees), embodies the entire agreement and supersede all prior agreements,
written and oral, relating to the subject matter hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the
date set forth above.
BORROWER: ▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation,
its general partner
By /s/
-----------------------------------
Its
----------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-131-
137
SOLE LEAD ▇▇▇▇▇ FARGO BANK, NATIONAL
ARRANGER/ADMINISTRATIVE ASSOCIATION
AGENT/LENDER:
By /s/
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
ADDRESS FOR NOTICE AND DELIVERY:
Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Pro Rata Share: 16.25%
Revolving Loan
Commitment: $65,000,000
LIBOR OFFICE:
Real Estate Group Disbursement Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
---------------------------------------
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
-------------------------------------
-132-
138
SYNDICATION AGENT/ LENDER: BANK OF AMERICA, NATIONAL
ASSOCIATION
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
Bank of America, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ProRata Share: 11.5625%
Revolving Loan
Commitment: $46,250,000
LIBOR OFFICE:
Bank of America, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-133-
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/ ▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND
GRAND CAYMAN BRANCHES
By /s/
------------------------------------------
Its
-----------------------------------------
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
Commerzbank AG
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
E-mail:
-------------------------------------
Pro Rata Share: 11.5625%
Revolving Loan
Commitment: $46,250,000
LIBOR OFFICE:
Commerzbank AG
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
E-mail:
-------------------------------------
-134-
140
BANK ONE, NA
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
Bank One, NA
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:▇▇▇▇▇▇▇_▇▇▇▇▇@▇▇.▇▇▇▇▇.▇▇▇
Pro Rata Share: 11.5625%
Revolving Loan
Commitment: $46,250,000
LIBOR OFFICE:
Bank One, NA
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇_▇▇▇▇▇@▇▇.▇▇▇▇▇.▇▇▇
-135-
141
U.S. BANK NATIONAL ASSOCIATION
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Pro Rata Share: 11.5625%
Revolving Loan
Commitment: $46,250,000
LIBOR OFFICE:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
-136-
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Pro Rata Share: 8.75%
Revolving Loan
Commitment: $35,000,000
LIBOR OFFICE:
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
-137-
143
BANKERS TRUST COMPANY
By /s/
------------------------------------------
Its
-----------------------------------------
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
Pro Rata Share: 6.25%
Revolving Loan
Commitment: $25,000,000
LIBOR OFFICE:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
-138-
144
OTHER LENDERS: ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Pro Rata Share: 6.25%
Revolving Loan
Commitment: $25,000,000
LIBOR OFFICE:
▇▇▇▇▇▇ Guaranty Trust Company of New York
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, Loan Technician
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
-------------------------------------
-139-
145
PNC BANK, NATIONAL ASSOCIATION
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
PNC Bank, National Association
One PNC Plaza, 249 Fifth Avenue
Mail Stop: P1-P0PP-19-2
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Pro Rata Share: 6.25%
Revolving Loan
Commitment: $25,000,000
LIBOR OFFICE:
PNC Bank, National Association
One PNC Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
-140-
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK
By /s/
------------------------------------------
Its
-----------------------------------------
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Mix
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇@▇▇▇▇▇.▇▇▇
Pro Rata Share: 5%
Revolving Loan
Commitment: $20,000,000
LIBOR OFFICE:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Mix
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇@▇▇▇▇▇.▇▇▇
-141-
147
AMSOUTH BANK
By /s/
------------------------------------------
Its
-----------------------------------------
By /s/
------------------------------------------
Its
-----------------------------------------
ADDRESS FOR NOTICE AND DELIVERY:
Amsouth Bank
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Pro Rata Share: 5%
Revolving Loan
Commitment: $20,000,000
LIBOR OFFICE:
Amsouth Bank
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
-------------------------------------
-142-
148
EXHIBIT A TO CREDIT AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is dated
_______________, between ______________ ("Assignor") and _________________
("Assignee").
RECITALS:
A. Assignor is a Lender under the First Amended and Restated Credit
Agreement dated November 14, 2000 (as from time to time amended, supplemented or
restated, the "Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P., a
California limited partnership ("Borrower"), the Persons named therein as
Lenders and such other Persons as may become Lenders or Designated Bid Lenders
in accordance with the terms of the Credit Agreement, and ▇▇▇▇▇ Fargo Bank,
National Association, as Administrative Agent ("Administrative Agent"), and
Commerzbank AG, New York and Grand Cayman Branches, as Documentation Agent and
Bank of America, National Association, as Syndication Agent. (Capitalized terms
used in this Agreement without definition have the same meanings as in the
Credit Agreement.)
B. Assignor desires to assign to Assignee, and Assignee desires to
accept and assume, [A PORTION OF] the rights and obligations of Assignor under
the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Assignment.
(a) Effective on the Assignment Effective Date (as defined in
Section 3 below), Assignor hereby assigns to Assignee the Assigned Share
(as defined below) of all of Assignor's rights, title, interest and
obligations under the Credit Agreement and other Loan Documents,
including without limitation those relating to Assignor's Commitment and
the Committed Loans, except with respect to any Bid Loans outstanding as
of the Assignment Effective Date, as to which Assignor retains all of
its rights, title, interest and obligations. The Assigned Share of all
such rights, title, interest and obligations is referred to collectively
as the "Assigned Rights and Obligations."
(b) The "Assigned Share" means (i) a $__________ portion of the
Committed Facility on the Assignment Effective Date, and (ii) the
aggregate amount of all Committed Loans outstanding under the Credit
Agreement on the Assignment Effective Date that is attributable to the
percentage of the Facility
A-1
149
represented by the Assigned Share. The Pro Rata Share represented by the
Assigned Share, and the Pro Rata Share, if any, retained by Assignor,
shall be as specified on the signature pages of this Agreement.
2. Assumption. Effective on the Assignment Effective Date, Assignee
hereby accepts the foregoing assignment of, and hereby assumes from Assignor,
the Assigned Rights and Obligations.
3. Effectiveness. This Agreement shall become effective on a date
(the "Assignment Effective Date") selected by Assignor, which shall be on or as
soon as practicable after the execution and delivery of counterparts of this
Agreement by Assignor and Assignee and (to the extent applicable) Administrative
Agent and Borrower. Assignor shall promptly notify Assignee, Administrative
Agent and Borrower in writing of the Assignment Effective Date.
4. Payments on Assignment Effective Date. In consideration of the
assignment by Assignor to and the assumption by Assignee of the Assigned Rights
and Obligations, on the Assignment Effective Date (a) Assignee shall pay to
Assignor such amounts as are specified in any written agreement or exchange of
letters between them, and (b) Assignor shall pay to Administrative Agent an
assignment processing fee of $3,000.
5. Allocation and Payment of Interest and Fees.
(a) Administrative Agent shall pay to Assignee all interest,
Facility Fees and other amounts not constituting principal that are paid by or
on behalf of Borrower pursuant to the Loan Documents and are attributable to the
Assigned Rights and Obligations ("Borrower Amounts"), that accrue on and after
the Assignment Effective Date. If Assignor receives or collects any such
Borrower Amounts, Assignor shall promptly pay them to Assignee.
(b) Administrative Agent shall pay to Assignor all Borrower
Amounts that accrue before the Assignment Effective Date when and as the same
are paid by Administrative Agent to the other Lenders. If Assignee receives or
collects any such Borrower Amounts, Assignee shall promptly pay such amounts to
Assignor.
(c) Unless specifically assumed by Assignee, Assignor shall be
responsible and liable for all reimbursable Liabilities and Costs and
indemnification obligations which accrue under Section 11.7 of the Credit
Agreement prior to the Assignment Effective Date, and such liability shall
survive the Assignment Effective Date.
A-2
150
(d) Administrative Agent shall not be liable for any allocation
or payment to either Assignor or Assignee subsequently determined to be
erroneous, unless resulting from Administrative Agent's wilful misconduct or
gross negligence.
6. Representations and Warranties.
(a) Each of Assignor and Assignee represents and warrants to the
other and to Administrative Agent as follows:
(i) It has full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and to fulfill
its obligations under, and to consummate the transactions
contemplated by, this Agreement;
(ii) The making and performance of this Agreement and all
documents required to be executed and delivered by it hereunder
do not and will not violate any law or regulation applicable to
it;
(iii) This Agreement has been duly executed and delivered by
it and constitutes its legal, valid and binding obligation
enforceable in accordance with its terms; and
(iv) All approvals, authorizations or other actions by, or
filings with, any governmental authority necessary for the
validity or enforceability of its obligations under this
Agreement have been made or obtained.
(b) Assignor represents and warrants to Assignee that Assignor
owns the Assigned Rights and Obligations free and clear of any lien or other
encumbrance.
(c) Assignee represents and warrants to Assignor as follows:
(v) Assignee has made and shall continue to make its own
independent investigation of the financial condition, affairs and
creditworthiness of Borrower and any other person or entity
obligated under the Loan Documents (collectively, "Credit
Parties"); and
(vi) Assignee has received copies of the Loan Documents and
such other documents, financial statements and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement.
A-3
151
7. No Assignor Responsibility. Assignor makes no representation or
warranty regarding, and assumes no responsibility to Assignee for:
(a) the execution (by any party other than Assignor),
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of the Loan Documents or any representations, warranties, recitals
or statements made in the Loan Documents or in any financial or other written or
oral statement, instrument, report, certificate or any other document made or
furnished or made available by Assignor to Assignee or by or on behalf of any
Credit Party to Assignor or Assignee in connection with the Loan Documents and
the transactions contemplated thereby;
(b) the performance or observance of any of the terms, covenants
or agreements contained in any of the Loan Documents or as to the existence or
possible existence of any Unmatured Event of Default or Event of Default under
the Loan Documents; or
(c) the accuracy or completeness of any information provided to
Assignee, whether by Assignor or by or on behalf of any Credit Party.
Assignor shall have no initial or continuing duty or responsibility
to make any investigation of the financial condition, affairs or
creditworthiness of any of the Credit Parties, in connection with the assignment
of the Assigned Rights and Obligations or to provide Assignee with any credit or
other information with respect thereto, whether coming into its possession
before the date hereof or at any time or times thereafter.
8. Assignee Bound by Credit Agreement. Effective on the Assignment
Effective Date, Assignee (a) shall be deemed to be a party to the Credit
Agreement, (b) agrees to be bound by the Credit Agreement to the same extent as
it would have been if it had been an original Lender thereunder, and (c) agrees
to perform in accordance with their respective terms all of the obligations
which are required under the Loan Documents to be performed by it as a Lender.
Assignee appoints and authorizes Administrative Agent to take such actions as
agent on its behalf and to exercise such powers under the Loan Documents as are
delegated to Administrative Agent by the terms thereof.
9. Assignor Released from Credit Agreement. Effective on the
Assignment Effective Date, Assignor shall be released from the Assigned Rights
and Obligations; provided, however, that (a) Assignor shall retain all of its
rights (i) to indemnification under the Credit Agreement and the other Loan
Documents for any events, acts or omissions occurring before the Assignment
Effective Date, and (ii) with respect to any outstanding Bid Loans made by
Assignor under the Credit Agreement (no interest in which is being assigned
pursuant hereto); and (b) to the extent not assumed by Assignee, Assignor shall
continue to be responsible for the liabilities and obligations described in
Section 5(c) of this Agreement and bound by the provisions of Section 6.3 of the
Credit Agreement.
▇-▇
▇▇▇
▇▇. New Notes. On or promptly after the Assignment Effective Date,
Borrower, Administrative Agent, Assignor and Assignee shall make appropriate
arrangements so that new Loan Notes executed by Borrower, dated the Assignment
Effective Date and referring, inter alia, to the amount[S] of the [RESPECTIVE]
Commitment[S] of [ASSIGNOR AND] Assignee (as well as any then outstanding Bid
Loans made by Assignor and any Bid Loans made in the future, by Assignor or
Assignee, respectively), after giving effect to this Agreement, are issued to
[ASSIGNOR AND] Assignee, in exchange for the surrender by Assignor [AND
ASSIGNEE] to Borrower of any applicable outstanding Loan Note[S], marked
"Exchanged."
11. General.
(a) No term or provision of this Agreement may be amended,
waived or terminated orally, but only by an instrument signed by the parties
hereto.
(b) This Agreement may be executed in one or more counterparts.
Each set of executed counterparts shall be an original. Executed counterparts
may be delivered by facsimile transmission.
(c) If Assignor has not assigned its entire remaining Commitment
and Committed Loans to Assignee, Assignor may at any time and from time to time
grant to others, subject to applicable provisions in the Credit Agreement,
assignments of or participation in all of Assignor's remaining Committed Loans
or Commitment.
(d) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Neither Assignor nor Assignee may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of
Administrative Agent and Borrower. The preceding sentence shall not limit the
right of Assignee to grant to others a participation in all or part of the
Assigned Rights and Obligations subject to the terms of the Credit Agreement.
(e) All payments to Assignor or Assignee hereunder shall, unless
otherwise specified by the party entitled thereto, be made in Dollars, in
immediately available funds, and to the address or account specified on the
signature pages of this Agreement. The address of Assignee for notice purposes
under the Credit Agreement shall be as specified on the signature pages of this
Agreement.
(f) If any provision of this Agreement is held invalid, illegal
or unenforceable, the remaining provisions hereof will not be affected or
impaired in any way.
(g) Each party shall bear its own expenses in connection with
the preparation and execution of this Agreement.
A-5
153
(h) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. [FOREIGN WITHHOLDING. On or before the Assignment Effective
Date, Assignee shall comply with the provisions of Section 2.4.9 of the Credit
Agreement.](1)
--------
(1) Include only if Assignee is a foreign institution.
A-6
154
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
ASSIGNOR: ___________________________________________
By ________________________________________
Printed Name ______________________________
Title _____________________________________
Pro Rata Share: ___%
Loan Commitment: $________________________
Assignor's Payment Instruction:
___________________________________________
___________________________________________
___________________________________________
ABA No.____________________________________
Account No.________________________________
Reference _________________________________
Telephone: (___)__________________________
Telecopy: (___)___________________________
e-mail:____________________________________
ASSIGNEE:
___________________________________________
By ________________________________________
Printed Name ______________________________
Title _____________________________________
ADDRESS FOR NOTICE AND DELIVERY:
Address: __________________________________
__________________________________
__________________________________
Attn:______________________________________
Telephone: (___)__________________________
Telecopy: (___)___________________________
e-mail:____________________________________
A-7
155
Pro Rata Share: ___%
Loan Commitment: $________________________
LIBOR OFFICE:
Address: __________________________________
__________________________________
__________________________________
__________________________________
Attn:______________________________________
Telephone: (___)__________________________
Telecopy: (___)___________________________
Assignee's Payment Instruction:
___________________________________________
___________________________________________
___________________________________________
ABA No. ___________________________________
Account No. _______________________________
Reference _________________________________
Telephone: (___)__________________________
Telecopy: (___)___________________________
ACKNOWLEDGED AND AGREED:
[BORROWER:(2) ▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a California limited partnership
By ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its general
partner
By _________________________________
Its ______________________________ ]
----------
(2) Not required if any Unmatured Event of Default or Event of Default
has occurred and is continuing.
A-8
156
ADMINISTRATIVE AGENT: ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By _________________________________
Its ______________________________ ]
A-9
157
EXHIBIT B TO CREDIT AGREEMENT
UNENCUMBERED POOL CERTIFICATE
This Certificate is given pursuant to Section 6.1.6 of the First Amended and
Restated Credit Agreement dated as of November 14, 2000 (as amended,
supplemented or restated from time to time, the "Credit Agreement") among
▇▇▇▇▇▇▇ Properties, L.P., the Persons named therein as Lenders and such other
Persons as may become Lenders or Designated Bid Lenders in accordance with the
terms of the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Agent, Commerzbank AG, New York and Grand Cayman Branches, as Documentation
Agent and Bank of America, National Association, as Syndication Agent (all
capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement). The undersigned hereby certifies that (a)
Schedule 1 attached hereto accurately and completely sets forth, as of the date
hereof: (i) the Net Operating Income of each Unencumbered Pool Property (or,
where applicable, the Borrower's Adjusted Percentage Interest thereof) for the
Fiscal Quarter most recently ended, (ii) the unencumbered cash and Cash
Equivalents of Borrower and the UPP Subpartnerships (exclusive of tenant
deposits) (or, where applicable, the Borrower's Adjusted Percentage Interest
thereof), (iii) all Unsecured Liabilities of the Borrower and its Subsidiaries
(other than the Loans), (iv) the Loan Availability (v) the Minimum Leasing
information, (vi) the Approved Property Type information, (vii) the Approved
Market information, (viii) the UPP Subpartnership information, (ix) the Ground
Lease information and (x) IN BOLD TYPEFACE, any new Unencumbered Pool Property
since the last Unencumbered Pool Certificate (except for any addition made
pursuant to a previously delivered UPP Eligibility Certificate), and (b) each
Unencumbered Pool Property satisfies all UPP Eligibility Criteria.
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
Date:
-------------------------------------
B-1
158
▇▇▇▇▇▇▇ PROPERTIES
SCHEDULE 1 TO UNENCUMBERED POOL CERTIFICATE
Capped
Total Occupied Occupancy Quarterly Annualized Value
Region Type Project# Description Square Ft. Square Ft. Rate NOI(1) NOI 0.0925(2)
------ ---- -------- ----------- ---------- ---------- --------- --------- ---------- ---------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
----- ----- ----- ----- ----- -----
Totals ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇(3)
------------------
(1) If the Property is owned by a UPP Subpartnership in which Borrower
holds (directly or indirectly) less than 100% of the equity of the UPP
Subpartnership, use only the Borrower's Adjusted Percentage Interest of actual
NOI.
(2) 0.10 for Ground Leases
(3) Insert this total at Line 1.
B-1
159
LOAN AVAILABILITY
1. Value of Unencumbered Pool Property: $___________________
2. Add: cash/Cash Equivalents of Borrower and UPP
Subpartnerships:(4) $___________________
3. Unencumbered Pool Value [sum of Lines 1 and 2]: $___________________
4. Line 3 multiplied by .57143: $___________________
5. Unsecured Liabilities (other than the Loans): $___________________
6. Line 4 less Line 5: $___________________
7. Total Loan Availability (lesser of: Line 6 and
$400,000,000): $___________________
MINIMUM LEASING
8. Total Building Square Feet: _________________ sf
9. Total Leased Square Feet:(5) _________________ sf
10. Total Percentage Leased [Line 9 divided by Line 8]: _________________ %
11. Minimum Percentage Leased [Line 10 greater than Line
11]: 90.00%
[ADD INFORMATION AND LINE ITEMS FOR APPROVED PROPERTY TYPE, APPROVED
MARKET, UPP SUBPARTNERSHIP, GROUND LEASES AND ANY NEW UNENCUMBERED POOL PROPERTY
FROM COMPLIANCE CERTIFICATE.]
------------------
(4) Without duplication, and excluding tenant deposits and cash
or Cash Equivalents subject to any Lien. If any cash or Cash Equivalents
are owned by a UPP Subpartnership in which Borrower holds (directly or
indirectly) less than 100% of the equity of the UPP Subpartnership, use
only the Borrower's Adjusted Percentage Interest of the total cash and
Cash Equivalents owned by the UPP Subpartnership.
(5) Per definition of Aggregate Occupancy Rate.
B-1
160
EXHIBIT D TO CREDIT AGREEMENT
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to the First
Amended and Restated Credit Agreement dated as of November 14, 2000 (as amended,
supplemented or restated from time to time, the "Credit Agreement"), among
▇▇▇▇▇▇▇ Properties, L.P., the Persons named therein as Lenders and such other
Persons as may become Lenders or Designated Bid Lenders in accordance with the
terms of the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent, Commerzbank AG, New York and Grand Cayman Branches, as
Documentation Agent and Bank of America, National Association, as Syndication
Agent. (All capitalized defined terms used herein shall have the meanings given
to them in the Credit Agreement.)
1. The undersigned hereby certifies that (a) the undersigned has
reviewed the terms of the Credit Agreement and has made a review of the
transactions, financial condition and other affairs of the REIT, Borrower and
each UPP Subpartnership as of, and during the relevant accounting period ending
on, _______________, ____, and (b) such review has not disclosed the existence
during such accounting period, and the undersigned does not have knowledge of
the existence, as of the date hereof, of any condition or event constituting an
Unmatured Event of Default or an Event of Default [EXCEPT AS SET FORTH ON
ATTACHMENT A HERETO, WHICH ACCURATELY DESCRIBES THE NATURE OF THE CONDITION(S)
OR EVENT(S) THAT CONSTITUTE UNMATURED EVENT(S) OF DEFAULT OR EVENT(S) OF DEFAULT
AND THE ACTIONS WHICH BORROWER (IS TAKING) (IS PLANNING TO TAKE) WITH RESPECT TO
SUCH CONDITION(S) OR EVENT(S)].
2. The calculations required to establish compliance with each of
the provisions of Section 8.9 and Article IX of the Credit Agreement are
attached hereto as Schedule 1.
3. Schedule 1 identifies all non-Guarantor Subsidiaries of Borrower
formed after [the date of the Credit Agreement][the delivery of the most recent
Compliance Certificate].
4. The control covenant set forth in Section 8.5 of the Credit
Agreement is being fully complied with, as confirmed on Schedule 1.
5. The aggregate outstanding principal amount of the Loans as of the
date hereof (whether Committed Loans or Bid Loans) is equal to or less than Loan
Availability.
----------------------------------------
Chief Financial Officer of the REIT
Date: ____________________ __, ____
D-1
161
EXHIBIT E TO CREDIT AGREEMENT
LOAN NOTE
November 14, 2000
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ PROPERTIES, L.P., a California limited
partnership ("BORROWER"), HEREBY PROMISES TO PAY to the order of
______________________________________ ("LENDER"), for Lender's own account and,
in its capacity as administrative agent for its "DESIGNATED BID LENDER" (if
any), for the account of its Designated Bid Lender with respect to "BID LOANS"
funded by such Designated Bid Lender: the principal sum of (i)
_______________________ Million Dollars ($_______________) or if less, the
aggregate unpaid principal amount of all "COMMITTED LOANS" disbursed by Lender
pursuant to Lender's "COMMITMENT" (as such terms are defined in the First
Amended and Restated Credit Agreement dated as of ________ __, 2000, as amended,
supplemented or restated from time to time the "CREDIT AGREEMENT", among
Borrower, Lender, certain other Lenders and Designated Bid Lenders named therein
or made parties thereto and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent, Commerzbank AG, New York and Grand Cayman Branches, as
Documentation Agent and Bank of America, National Association, as Syndication
Agent), plus (ii) the aggregate unpaid principal amount of all Bid Loans
disbursed by Lender or its Designated Bid Lender pursuant to the Loan Agreement,
in each case, together with interest on the unpaid principal balance of each
such Committed Loan and Bid Loan at the rate (or rates) determined in accordance
with Section 2.4 of the Credit Agreement from the date such principal is
advanced until it is paid in full. It is contemplated that there will be
advances and payments under this Loan Note from time to time, but no advances or
payments under this Loan Note (including payment in full of the unpaid balance
of principal hereof prior to maturity) shall affect or impair the validity or
enforceability of this Loan Note as to future advances hereunder.
This Loan Note is one of the Loan Notes referred to in and governed by
the Credit Agreement, which Credit Agreement, among other things, contains
provisions for the acceleration of the maturity hereof and for the payment of
certain additional sums to Lender upon the happening of certain stated events.
Capitalized terms used in this Loan Note without definition have the same
meanings as in the Credit Agreement.
The principal amount of each Bid Loan made by Lender or its Designated
Bid Lender, unless accelerated in accordance with the provisions of the Credit
Agreement as described below, is due and payable at the end of the Bid Loan
Interest Period applicable thereto. The principal amount of this Loan Note, if
not sooner paid, will be due and payable, together with all accrued and unpaid
interest and other amounts due and unpaid under the Credit Agreement, on the
Termination Date, or if properly extended by Borrower pursuant to Section 2.1.6
of the Credit Agreement, on the Extended
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Date. Borrower may make voluntary prepayments of all or a portion of
the Committed Loans evidenced by this Loan Note, upon prior written notice, in
accordance with the provisions of Section 2.6.1 or Section 2.9 of the Credit
Agreement. Borrower may not make voluntary prepayments of any Bid Loan.
Interest on the Loans is payable in arrears on the first Business Day of
each month during the term of the Credit Agreement, commencing with the first
Business Day of the first calendar month to begin after the date of this Loan
Note. Interest will be computed on the basis of the actual number of days
elapsed in the period during which interest accrues and a year of three hundred
sixty (360) days. The Credit Agreement provides for the payment by Borrower of
various other charges and fees, in addition to the interest charges described in
the Credit Agreement, as set forth more fully in the Credit Agreement.
All payments of any amount becoming due under this Loan Note shall be
made in the manner provided in the Credit Agreement, in Dollars. Lender may (and
is hereby authorized, but shall not be obligated, to) attach to this Note a
schedule showing the amount of each Committed Loan or Bid Loan made by Lender or
its Designated Bid Lender pursuant to the Credit Agreement, the Funding Date
(and, in the case of a Bid Loan, maturity date) thereof, the rate of interest
applicable thereto from time to time, and each payment of principal thereof or
interest thereon. Such schedule, if so attached, shall be presumptive evidence
of the information set forth thereon, absent manifest error; provided, however,
that Lender's failure to attach such schedule or, if a schedule is attached, to
record all such information with respect to the Committed Loans and Bid Loans
evidenced hereby, shall not impair Borrower's obligation to pay in full, in
accordance with the Credit Agreement, all amounts due in respect of such Loans.
Upon and after the occurrence of an Event of Default, unless such Event
of Default is waived as provided in the Credit Agreement, this Loan Note may, at
the option of Requisite Lenders and without demand, notice or legal process of
any kind, be declared by Administrative Agent, and in such case immediately
shall become, due and payable. Upon and after the occurrence of certain Events
of Default, this Loan Note shall, without any action by Lenders and without
demand, notice or legal process of any kind, automatically and immediately
become due and payable.
Demand, presentment, protest and notice of nonpayment and protest,
notice of intention to accelerate maturity, notice of acceleration of maturity
and notice of dishonor are hereby waived by Borrower. Subject to the terms of
the Credit Agreement, Lender (on its own behalf or as administrative agent for,
and on behalf of, its Designated Bid Lender, with respect to Bid Loans funded by
its Designated Bid Lender) may extend the time of payment of this Loan Note,
postpone the enforcement hereof, grant any indulgences, release any party
primarily or secondarily liable hereon or agree to any subordination of
Borrower's obligations hereunder without affecting or diminishing
E-2
163
Lender's (or its Designated Bid Lender's) right of recourse against Borrower,
which right is hereby expressly reserved.
This Loan Note has been delivered and accepted at San Francisco,
California. This Loan Note shall be interpreted in accordance with, and the
rights and liabilities of the parties hereto shall be determined and governed
by, the laws of the State of California.
In no contingency or event whatsoever shall interest charged in respect
of the Loans evidenced hereby, however such interest may be characterized or
computed, exceed the highest rate permissible under any law that a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
If such a court determines that Lender (or its Designated Bid Lender) has
received interest hereunder in excess of the highest rate applicable hereto,
Lender or its Designated Bid Lender, as the case may be shall, at Lender's (or,
if applicable, such Designated Bid Lender's) election, either (a) promptly
refund such excess interest to Borrower or (b) credit such excess to the
principal balance of the Loans funded by such Person. This provision shall
control over every other provision of all agreements between Borrower and Lender
or its Designated Bid Lender.
Whenever possible each provision of this Loan Note shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Loan Note shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Loan Note.
▇▇▇▇▇▇▇ PROPERTIES, L.P., a
California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its
general partner
By __________________________
Its _________________________
▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇ TO CREDIT AGREEMENT
NOTICE OF BORROWING
Re: First Amended and Restated Credit Agreement dated as of November 14,
2000 (as from time to time amended, supplemented or restated, the
"Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P. ("Borrower"),
the Persons named therein as Lenders and such other Persons as may
become Lenders or Designated Bid Lenders in accordance with the terms of
the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent ("Administrative Agent"), Commerzbank AG, New York
and Grand Cayman Branches, as Documentation Agent and Bank of America,
National Association, as Syndication Agent. (Capitalized terms used in
this Notice without definition have the same meanings as in the Credit
Agreement.)
▇▇▇▇▇ Fargo Real Estate Group
Disbursement Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:___________________
Pursuant to Section 2.1.2 of the Credit Agreement and the attached
Schedule 1*, this Notice represents the Borrower's request that a Committed Loan
be made to Borrower on __________, ____ (the "Funding Date") from the Lenders,
in accordance with their Pro Rata Shares, in an aggregate principal amount of
$____________. Proceeds of such Borrowing shall be deposited in Borrower's
account as provided in Section 2.1.4 of the Credit Agreement in same day funds
on the Funding Date.**
--------------------
* Schedule 1 shall include (a) if applicable, a statement that the
Committed Loan is being made under the Swing Line (in which case the
Loan must be a Base Rate Loan), or (b) in the case of each non-Swing
Line Committed Loan, designation of the Committed Loan as a Base Rate
Loan or a LIBOR Loan and, in the case of the latter, the Interest
Period.
** In the case where the Notice of Borrowing is in respect of a conversion
or continuance of a previously made Committed Loan, as referred to in
Section 2.1.2(b) of the Credit Agreement, this paragraph shall be
modified to refer to the date of conversion or continuation (in lieu of
the Funding Date) and the amount of the conversion or continuation (in
lieu of principal amount of a new Loan). In addition, items 2 and 3
below may be deleted in the case of such Notice of Borrowing.
F-1
165
Borrower hereby certifies that:
(1) As of the Funding Date, all conditions set forth in Section 4.2
of the Credit Agreement to the disbursement of the Committed Loan hereby
requested will be satisfied;
(2) Without limiting the foregoing, Borrower represents and warrants
to Lender that all insurance coverage required under Section 7.1.5 of the Credit
Agreement is in full force and effect;
(3) The Committed Loan requested hereby has been authorized by all
necessary corporate or partnership action on the part of each of the REIT and
Borrower;
(4) After giving effect to disbursement of the Committed Loan hereby
requested, Loan Availability will equal or exceed the aggregate outstanding
principal amount of all Loans (whether Committed Loans or Bid Loans); and
(5) The proceeds of such Committed Loan will be used for the
purposes identified on Schedule 1.
Dated: __________, ____ ▇▇▇▇▇▇▇ PROPERTIES, L.P., a
California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its
general partner
By___________________________
Its__________________________
cc: ▇▇▇▇▇ Fargo Bank Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------
conversion or continuation (in lieu of principal amount of a new Loan). In
addition, items 2 and 3 below may be deleted in the case of such Notice of
Borrowing.
F-2
166
EXHIBIT G TO CREDIT AGREEMENT
FORM OF FIXED RATE NOTICE
Re: First Amended and Restated Credit Agreement dated as of November 14,
2000 (as from time to time amended, supplemented or restated, the
"Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P. ("Borrower"),
the Persons named therein as Lenders and such other Persons as may
become Lenders or Designated Bid Lenders in accordance with the terms of
the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent ("Administrative Agent"), Commerzbank AG, New York
and Grand Cayman Branches, as Documentation Agent and Bank of America,
National Association, as Syndication Agent. (Capitalized terms used in
this Notice without definition have the same meanings as in the Credit
Agreement.)
▇▇▇▇▇▇▇ Properties, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Pursuant to the terms and provisions of Section 2.1.2 of the Credit
Agreement, Borrower has delivered to Administrative Agent a Notice of Borrowing,
dated __________________, ____, under which LIBOR has been selected as the basis
upon which interest shall accrue on the LIBOR Loan identified in such Notice of
Borrowing. In response to such Notice of Borrowing, and in accordance with
Section 2.1.2(c) of the Credit Agreement, Administrative Agent hereby confirms
the following as applicable to such LIBOR Loan:
1. The Interest Period shall begin on (and include) ______________,
200_, and shall end on (but exclude) _________________, ____;
2. The aggregate principal amount of the subject LIBOR Loan is
$____________________; and
3. LIBOR applicable to such LIBOR Loan is ________% per annum.
G-1
167
Disbursement (or continuation) of the aforesaid LIBOR Loan is subject to
the terms and conditions of the Credit Agreement. Please acknowledge the
foregoing by executing and returning to Administrative Agent a copy of this
Fixed Rate Notice. However, any failure to return such acknowledgement shall not
impair or alter Borrower's obligations under the subject LIBOR Loan.
Dated: __________, ____ ▇▇▇▇▇ Fargo Bank, National Association,
as Administrative Agent
By:
------------------------------------
ACKNOWLEDGED:
▇▇▇▇▇▇▇ PROPERTIES, L.P., a
California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its
general partner
By
----------------------------------
Its
---------------------------------
cc: Lenders
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EXHIBIT H TO CREDIT AGREEMENT
COMPETITIVE BID REQUEST
Re: First Amended and Restated Credit Agreement dated as of November 14,
2000 (as from time to time amended, supplemented or restated, the
"Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P. ("Borrower"),
the Persons named therein as Lenders and such other Persons as may
become Lenders or Designated Bid Lenders in accordance with the terms of
the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent ("Administrative Agent"), Commerzbank AG, New York
and Grand Cayman Branches, as Documentation Agent and Bank of America,
National Association, as Syndication Agent. (Capitalized terms used in
this Notice without definition have the same meanings as in the Credit
Agreement.)
▇▇▇▇▇ Fargo Real Estate Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Pursuant to Section 2.1.3 of the Credit Agreement and the attached
Schedule 1, this Notice represents the Borrower's request that one or more Bid
Loans (in the amount(s) and for the Bid Loan Interest Period(s) specified on
Schedule 1) be made to the Borrower on the date specified on Schedule 1 (the
"Funding Date"). Proceeds of such Borrowing shall be deposited in Borrower's
account as provided in Section 2.1.4 of the Credit Agreement in same day funds
on the Funding Date.
Borrower hereby certifies that:
(1) Borrower's senior long-term unsecured debt obligations are rated at
least BBB-/Baa3 by both Rating Agencies;
(2) As of the Funding Date, all conditions set forth in Section 4.2 of
the Credit Agreement to the disbursement of the Bid Loan(s) hereby requested
will be satisfied;
(3) Without limiting the foregoing, Borrower represents and warrants to
Lenders and Designated Bid Lenders (if any) that all insurance coverage required
under Section 7.1.5 of the Credit Agreement is in full force and effect;
(4) The Bid Loan(s) requested hereby have been authorized by all
necessary corporate or partnership action on the part of each of the REIT and
Borrower;
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(5) As of the requested Funding Date of the Bid Loan(s) requested hereby
(before giving effect to the disbursement thereof but excluding the principal of
any currently outstanding Bid Loans that mature on or before such requested
Funding Date), the aggregate balance of all Bid Loans then outstanding will be
$________________.
(6) After giving effect to disbursement of the Bid Loan(s) hereby
requested: (i) Loan Availability will equal or exceed the aggregate outstanding
principal amount of all Loans (whether Committed Loans or Bid Loans), and (ii)
the aggregate principal amount of all Bid Loans then outstanding will not exceed
the Bid Loan Limit; and
(7) The proceeds of such Bid Loans will be used for the purposes
identified on Schedule 1.
Dated: __________, ____ ▇▇▇▇▇▇▇ PROPERTIES, L.P., a
California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its
general partner
By __________________________
Its _________________________
cc: ▇▇▇▇▇ Fargo Bank Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE 1 TO COMPETITIVE BID REQUEST
This is a Competitive Bid Request for one or more Bid Loans, as follows:
1. The Funding Date of the proposed Borrowing(s) is
_________________.(6)
2. The aggregate principal amount of the Bid Loan(s) requested is
$___________________________.(7)
3. The Bid Loan(s) requested shall be comprised of [LIBOR] [Absolute
Rate] Bid Loans.(8)
4. The requested principal amounts and Bid Loan Rate Periods for the
requested Bid Loan(s) shall be:(9)
Bid Loan
Principal Amount Interest Period
---------------- ---------------
(a) ________________________ ______________________________
(b) ________________________ ______________________________
(c) ________________________ ______________________________
5. The purpose of the requested Bid Loan(s) is as follows:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
________________________________________________________________.
------------
(6) Must be a Business Day.
(7) Insert the sum of the dollar amounts listed in paragraph 4.
(8) The requested Bid Loans must all be either LIBOR Bid Loans or
Absolute Rate Bid Loans; Borrower may not request both a LIBOR Auction and an
Absolute Rate Auction with respect to the same Funding Date.
(9) No more than three Bid Loan Interest Periods may be requested in a
single Competitive Bid Request.
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EXHIBIT I TO CREDIT AGREEMENT
COMPETITIVE BID
Re: First Amended and Restated Credit Agreement dated as of November 14,
2000 (as from time to time amended, supplemented or restated, the
"Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P. ("Borrower"),
the Persons named therein as Lenders and such other Persons as may
become Lenders or Designated Bid Lenders in accordance with the terms of
the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent ("Administrative Agent"), Commerzbank AG, New York
and Grand Cayman Branches, as Documentation Agent and Bank of America,
National Association, as Syndication Agent. (Capitalized terms used in
this Notice without definition have the same meanings as in the Credit
Agreement.)
▇▇▇▇▇ Fargo Real Estate Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Pursuant to Section 2.1.3 of the Credit Agreement, the undersigned, in
response to Borrower's Competitive Bid Request dated __________, ____, offers
(subject to the terms and conditions of the Credit Agreement) to make [a] Bid
Loan(s) in the principal amount(s), at the interest rate(s), and for the Bid
Loan Interest Period(s), set forth below:(1)
Funding Date: _____________________(2)
Aggregate Maximum Principal Amount
of all Bid Loans offered hereby
that may be accepted: $_____________________
BID LOAN INTEREST PERIOD: _____________________(3)
------------
(1) Unless, pursuant to the Credit Agreement, this Competitive Bid is to
be disregarded, Agent is to communicate the contents of this Competitive Bid to
Borrower at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Chief Financial Officer, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
(2) From Borrower's Competitive Bid Request.
(3) From Borrower's Competitive Bid Request.
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Offer 1:(4)
Principal Amount: $_____________________(5)
Interest Rate: [Absolute Rate of ________%](6)
OR [LIBOR Bid Margin of +/- ______%]
Offer 2:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
Offer 3:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
[If more than one offer submitted:
Maximum aggregate principal amount of offers that may be accepted with respect
to this Bid Loan Interest Period: $___________________.]
BID LOAN INTEREST PERIOD: _____________________
Offer 1:
Principal Amount: $_____________________
-------------------
(4) Up to three offers may be submitted for each Bid Loan Interest
Period specified in Borrower's Competitive Bid Request. If more than one offer
is submitted with respect to a particular Bid Loan Interest Period, the
submitting Lender should specify the maximum principal amount of such offers
that may be accepted.
(5) Cannot exceed the aggregate amount requested by Borrower. Must be in
an amount equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(6) Select one or the other, as specified in the Competitive Bid
Request. In the case of a LIBOR Bid Margin, indicate whether the offered margin
is above (+) or below (-) the LIBOR Rate. Interest rates should be quoted to the
nearest one one-thousandth of a percent.
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Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
Offer 2:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
Offer 3:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
[If more than one offer submitted:
Maximum aggregate principal amount of offers that may be accepted with respect
to this Bid Loan Interest Period: $___________________.]
Bid Loan Interest Period: _____________________
Offer 1:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
Offer 2:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
Offer 3:
Principal Amount: $_____________________
Interest Rate: [Absolute Rate of ________%]
OR [LIBOR Bid Margin of +/- ______%]
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[If more than one offer submitted:
Maximum aggregate principal amount of offers that may be accepted with respect
to this Bid Loan Interest Period: $___________________.]
Submitting Lender: ____________________
Person to Contact at
Submitting Lender: ____________________
phone: ____________________
fax: ____________________
e-mail ___________________
The undersigned Lender understands and agrees that the submission of
this Competitive Bid irrevocably obligates the undersigned to make the Bid
Loan(s) described herein for which any offer(s) are accepted, in whole or in
part, subject only to the satisfaction of the applicable conditions precedent
set forth in the Credit Agreement.
Very truly yours,
[NAME OF SUBMITTING LENDER] (7)
By: ________________________
Its: ________________________
cc: ▇▇▇▇▇ Fargo Bank Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-----------
(7) Must be executed on behalf of the submitting Lender, or this
Competitive Bid will be disregarded.
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EXHIBIT J TO CREDIT AGREEMENT
UPP ELIGIBILITY CERTIFICATION
Re: First Amended and Restated Credit Agreement dated as of November 14,
2000 (as from time to time amended, supplemented or restated, the
"Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P. ("Borrower"),
the Persons named therein as Lenders and such other Persons as may
become Lenders or Designated Bid Lenders in accordance with the terms of
the Credit Agreement, and ▇▇▇▇▇ Fargo Bank, National Association, as
Administrative Agent ("Administrative Agent"), Commerzbank AG, New York
and Grand Cayman Branches, as Documentation Agent and Bank of America,
National Association, as Syndication Agent. (Capitalized terms used in
this Notice without definition have the same meanings as in the Credit
Agreement.)
▇▇▇▇▇ Fargo Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Pursuant to Section 3.1.2 of the Credit Agreement, Borrower hereby
certifies, with respect to each of the properties listed on the attached
Schedule 1:
(1) such property is (A) wholly-owned in fee by Borrower, a UPP
Subpartnership or a Partnership that has previously been approved
by Administrative Agent and the Majority Lenders to become a "UPP
Subpartnership", or is (B) ground leased by a Person referred to
in the preceding clause (A) pursuant to a ground lease approved
by Administrative Agent and the Majority Lenders (subject to the
limitations set forth below), and in every instance neither such
property, nor any interest in the Person owning such Property
(other than interests, not constituting general or management
partnership or membership interests, held by Third Party
Partners), is subject to (1) any Lien (other than Permitted
Liens) or (2) except in the case of a Guarantor Subpartnership,
any Negative Pledge; provided, however, that (x) the aggregate
Individual UPP Values of all such ground leased properties (other
than the initial Ground Leases) do not exceed seven and one-half
percent (7.5%) of the Unencumbered Pool Value unless otherwise
approved by Administrative Agent and the Majority Lenders; and
(y) the foregoing limitation shall not apply to ground leases
between Borrower or such other Person or Persons, in each case,
wholly-owned by the REIT, by Borrower, by the REIT and
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Borrower, or, if approved by Administrative Agent and the
Majority Lenders, by Borrower and one or more Guarantor
Subpartnerships;
(2) as specified on Schedule 1 with respect to such property: either
(A) the property is improved with one or more completed (1)
office buildings, (2) industrial buildings, or (3) buildings of
such other type as Administrative Agent and the Majority Lenders
may from time to time approve for purposes of the UPP Eligibility
Criteria (the "Approved Property Types"), or (B) unless otherwise
approved by Administrative Agent and Majority Lenders, (1) the
Individual UPP Value of the property, when added to the aggregate
Individual UPP Values of all Special UPPs of types other than the
Approved Property Types, do not exceed ten percent (10%) of the
Unencumbered Pool Value, and (2) the Individual UPP Value of the
property do not exceed five percent (5%) of the Unencumbered Pool
Value (in each case, determined as if such property were an
Unencumbered Pool Property) (and specifying which of the
preceding clauses (A) and (B) is applicable);
(3) if such property is an Unencumbered Pool Property: (A) the
Aggregate Occupancy Rate, as of the date of this UPP Eligibility
Certification, is not less than ninety percent (90%); (B) the
aggregate Individual UPP Values of the Unencumbered Pool
Properties owned by UPP Subpartnerships (whether or not such UPP
Subpartnerships are Guarantor Subpartnerships), as of the date of
this UPP Eligibility Certification, do not exceed fifteen percent
(15%) of the Unencumbered Pool Value; and (C) the aggregate
Individual UPP Values of the Unencumbered Pool Properties owned
by UPP Subpartnerships that are not Guarantor Subpartnerships, as
of the date of this UPP Eligibility Certification, do not exceed
five percent (5%) of the Unencumbered Pool Value;
(4) as specified on Schedule 1 with respect to such property: either
(A) such property is located in the market identified on Schedule
1, which is an Approved Market, unless otherwise approved by
Administrative Agent and Majority Lenders, or (B) the Individual
UPP Value of the property, when added to the aggregate Individual
UPP Values of all Special UPPs located outside the Approved
Markets, does not exceed ten percent (10%) of the Unencumbered
Pool Value (determined as if such property were an Unencumbered
Pool Property);
(5) (A) (1) Borrower has obtained, with respect to such
property a "Phase I" environmental assessment,
prepared as of the date indicated on Schedule 1, by
the consultant identified on Schedule 1;
J-2
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(2) such consultant is of good repute within the region
in which such property is located and is believed
by Borrower to be competent;
(3) Borrower has reviewed such assessment and believes
it reasonable to rely upon such assessment; and
(4) such assessment does not (a) identify any
contamination or potential contamination that has
resulted in, or that could reasonably be
anticipated to result in, a Material Adverse Effect
on such property, or (b) recommend that any further
material investigation be undertaken; and
(B) (1) Borrower has obtained, with respect to such
property a structural/physical report, prepared as
of the date indicated on Schedule 1, by the
consultant identified on Schedule 1;
(2) such consultant is of good repute within the region
in which such property is located and is believed
by Borrower to be competent;
(3) Borrower has reviewed such report and believes it
reasonable to rely upon such report; and
(4) such report does not identify any material defect
in construction or physical condition of the
property, material variance from any available
plans and specifications for the property or
material violation of applicable law, or other item
of material concern with respect to the structural
integrity or physical condition of the property.
(5) such property is not the subject of any material
condemnation proceedings (and Borrower has not
received written notice of any threatened material
condemnation proceedings).
Dated: __________, ____ ▇▇▇▇▇▇▇ PROPERTIES, L.P., a
California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its
general partner
By __________________________
Its _________________________
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cc:
J-4
179
SCHEDULE 1 TO UPP ELIGIBILITY CERTIFICATION
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EXHIBIT K TO CREDIT AGREEMENT
DESIGNATION AGREEMENT
Dated ____________________ __, ____
Reference is made to the First Amended and Restated Credit Agreement
dated as of November 14, 2000 (as from time to time amended, supplemented or
restated, the "Credit Agreement"), by and among ▇▇▇▇▇▇▇ Properties, L.P., a
California limited partnership ("Borrower"), the Persons named therein as
Lenders and such other Persons as may become Lenders or Designated Bid Lenders
in accordance with the terms of the Credit Agreement, and ▇▇▇▇▇ Fargo Bank,
National Association, as Administrative Agent ("Administrative Agent"),
Commerzbank AG, New York and Grand Cayman Branches, as Documentation Agent and
Bank of America, National Association, as Syndication Agent. (Capitalized terms
used in this Agreement without definition have the same meanings as in the
Credit Agreement.)
[NAME OF Designating Lender] (the "Designating Lender"), [NAME OF
DESIGNEE] (the "Designee"), hereby agree as follows:
1. The Designating Lender hereby designates Designee, and Designee
hereby accepts such designation, as a Designated Bid Lender, to have a right to
make Bid Loans pursuant to Section 2.1.1(b) of the Credit Agreement and related
provisions. Each assignment by Designating Lender to Designee of its rights to
make a Bid Loan pursuant to the Credit Agreement shall be effective at the time
of the funding of such Bid Loan, and not before such time.
2. Except as set forth in Section 7 below, the Designating Lender makes
no representation or warranty, and assumes no responsibility pursuant to this
Designation Agreement, with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
thereto, or (b) the financial condition of Borrower or the performance or
observance by Borrower of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto.
3. Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to therein,
and of such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Designation Agreement;
(b) agrees that it will, independently and without reliance upon Administrative
Agent, the Designating Lender or any other Lender or Designated Bid Lender and
based on such documents and
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information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Loan Document; (c)
represents and warrants that it is a "Designated Bid Lender" within the meaning
of such term as defined in the Credit Agreement; (d) confirms the authorization
of Administrative Agent to take such action, and to exercise such powers and
discretion, under the Credit Agreement or any other Loan Document, in connection
with Bid Loans made by Designee or otherwise relating to Designee's rights and
obligations under any such document, as are delegated to Administrative Agent by
the terms thereof, together with such powers and discretion as are reasonably
incidental thereto; and (e) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of any Loan Document are
required to be performed by it as a Designated Bid Lender. Designee represents
and warrants that (x) it is duly organized and existing and has full power and
authority to take, and has taken, all action necessary to execute and deliver
this Designation Agreement and any other documents required or permitted to be
executed or delivered by it in connection with this Designation Agreement, and
to fulfill its obligations hereunder; (y) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Designation Agreement, and apart from any requirements in the Loan Documents, no
further action by or notice to or filing with any Person is required of it for
such execution, delivery or performance; and (z) this Designation Agreement has
been duly executed and delivered by it and constitutes the legal, valid and
binding obligation of Designee, enforceable against Designee in accordance with
the terms hereof, except as to enforcement, bankruptcy, insolvency, moratorium,
and other laws of general application relating to creditors' rights and to
general equitable principles.
4. Designee hereby appoints Designating Lender as Designee's agent and
attorney in fact and grants to Designating Lender an irrevocable power of
attorney (a) to receive payments made for the benefit of Designee under the
Credit Agreement and the other Loan Documents, (b) to deliver and receive all
communications and notices under the Credit Agreement and the other Loan
Documents, and (c) to exercise on Designee's behalf all rights to vote and to
grant and make approvals, waivers, consents of amendments to or under the Credit
Agreement or the other Loan Documents. Any document executed by the Designating
Lender on Designee's behalf in connection with the Credit Agreement or the other
Loan Documents shall be binding on Designee, and Designee agrees that (x)
Borrower's and Administrative Agent's obligation to make any payment to Designee
shall be satisfied upon payment of such amount to the Designating Lender,
without any duty to see to the application thereof by the Designating Lender),
and (y) any notice or other communication delivered to Designating Lender in
connection with the Credit Agreement or any other Loan Document shall be deemed
validly delivered to Designee, without any duty on the part of Borrower or
Administrative Agent to verify whether such notice or other communication is
actually delivered by Designating Lender to Designee.
K-2
182
5. Following the execution of this Designation Agreement by Designating
Lender and Designee, it shall be delivered to Borrower for acceptance by
Borrower and then to Administrative Agent for acceptance by Administrative
Agent. The effective date for this Designation Agreement (the "Effective Date")
shall be the date of acceptance hereof by Administrative Agent, unless otherwise
specified on the signature page thereto.
6. From and after the Effective Date, Designee shall become a party to
the Credit Agreement, as a Designated Bid Lender, with (a) the right to make Bid
Loans described above in Section 1, and (b) the other rights, and the
obligations, provided herein and therein (including, without limitation, all the
rights of a Designated Bid Lender pursuant to Section 11.12.3(e) of the Credit
Agreement), subject to the limitation, however, that, notwithstanding the
assumption by a Designee of the obligations of a Designated Bid Lender, Designee
shall not be required to make payments with respect to any of its obligations
under the Credit Agreement or any other Loan Document, except to the extent of
excess cash flow of Designee (i.e., cash that is not otherwise required to repay
obligations of Designee that are then due and payable). Without limiting the
generality of the foregoing, Designee agrees that, with effect from the
Effective Date, it shall be bound by, and subject to, the jurisdictional
provisions of the Credit Agreement and the other Loan Documents. Borrower,
Administrative Agent and each of the Lenders and other Designated Bid Lenders
may rely on and are beneficiaries of the provisions of this Section and of the
preceding Sections of this Designation Agreement.
7. Notwithstanding the preceding Section 6 or any other provision of
this Designation Agreement, the Designating Lender, as administrative agent for
Designee, shall be and remain obligated to Borrower, Administrative Agent, the
Lenders and the other Designated Bid Lenders for the payment and performance of
each of every one of the obligations of Designee and its Designating Lender with
respect to the Credit Agreement and the other Loan Documents, including, without
limitation, any indemnification obligations under the Credit Agreement and any
other sums otherwise payable to Borrower, Administrative Agent, any Lender or
any other Designated Bid Lender by Designee.
8. The Designating Lender unconditionally agrees to pay or reimburse
Designee and save Designee harmless against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Loan Documents against Designee, in its capacity as
such, in any way relating to or arising out of this Designation Agreement, the
Credit Agreement or any other Loan Document or any action taken or omitted by
Designee hereunder or thereunder, provided that the Designating Lender shall not
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements if the
same results from Designee's gross negligence or willful misconduct.
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9. This Designation Agreement shall be governed by and construed in
accordance with the laws of the State of California.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designating Lender and Designee, intending to be
legally to bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date: ____________________ __, ____
[NAME OF DESIGNATING LENDER]
as Designating Lender
By:_________________________________
Title:______________________________
[NAME OF DESIGNEE]
as Designee
By:_________________________________
Title:______________________________
Address for notices:
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184
Accepted this ____ day
of _____________, 200_
▇▇▇▇▇▇▇ PROPERTIES, L.P.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation, its
general partner
By:_________________________________
Title:______________________________
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:_________________________________
Title:______________________________
K-5