EXHIBIT 10.45
_________________________________________________________
_________________________________________________________
REVOLVING CREDIT AGREEMENT
dated as of May 21, 1997
among
▇▇▇▇▇▇ REALTY, ▇.▇.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and as Lead Agent for the Banks,
and
THE BANKS LISTED HEREIN
_________________________________________________________
_________________________________________________________
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS............................................. 1
SECTION 1.1. Definitions.................................................... 1
SECTION 1.2. Accounting Terms and Determinations............................ 21
SECTION 1.3. Types of Borrowings............................................ 22
ARTICLE II
THE CREDITS............................................. 22
SECTION 2.1. Commitments to Lend............................................ 22
SECTION 2.2. Notice of Borrowing............................................ 23
SECTION 2.3. Notice to Banks; Funding of Loans.............................. 23
SECTION 2.4. Notes.......................................................... 24
SECTION 2.5. Maturity of Loans.............................................. 25
SECTION 2.6. Interest Rates................................................. 25
SECTION 2.7. Fees........................................................... 27
SECTION 2.8. Mandatory Termination.......................................... 28
SECTION 2.9. Mandatory Prepayment........................................... 28
SECTION 2.10. Optional Prepayments........................................... 29
SECTION 2.11. General Provisions as to Payments.............................. 30
SECTION 2.12. Funding Losses................................................. 31
SECTION 2.13. Computation of Interest and Fees............................... 32
SECTION 2.14. Method of Electing Interest Rates.............................. 32
ARTICLE III
CONDITIONS............................................. 34
SECTION 3.1. Closing........................................................ 34
SECTION 3.2. Borrowings..................................................... 38
SECTION 3.3. Conditions Precedent to Additional Real Property Assets........ 39
SECTION 3.4. Mortgaged Properties........................................... 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................... 42
SECTION 4.1. Existence and Power............................................ 42
SECTION 4.2. Power and Authority............................................ 43
SECTION 4.3. No Violation................................................... 43
SECTION 4.4. Financial Information.......................................... 44
SECTION 4.5. Litigation..................................................... 44
SECTION 4.6. Compliance with ERISA.......................................... 44
SECTION 4.7 Environmental Compliance....................................... 45
SECTION 4.8. Taxes.......................................................... 47
SECTION 4.9. Full Disclosure................................................ 47
SECTION 4.10. Solvency....................................................... 47
SECTION 4.11. Use of Proceeds; Margin Regulations............................ 47
SECTION 4.12. Governmental Approvals......................................... 48
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SECTION 4.13. Investment Company Act; Public Utility Holding Company Act...... 48
SECTION 4.14. Closing Date Transactions....................................... 48
SECTION 4.15. Representations and Warranties in Loan Documents................ 48
SECTION 4.16. Patents, Trademarks, etc........................................ 49
SECTION 4.17. No Default...................................................... 49
SECTION 4.18. Licenses, etc................................................... 49
SECTION 4.19. Compliance With Law............................................. 49
SECTION 4.20. No Burdensome Restrictions...................................... 50
SECTION 4.21. Brokers' Fees................................................... 50
SECTION 4.22. Labor Matters................................................... 50
SECTION 4.23. Organizational Documents........................................ 50
SECTION 4.24. Principal Offices............................................... 50
SECTION 4.25. REIT Status..................................................... 51
SECTION 4.26. Ownership of Property........................................... 51
SECTION 4.27. Security Interests and Liens.................................... 51
SECTION 4.28. Structural Defects and Violation of Law......................... 51
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS........................ 52
SECTION 5.1. Information..................................................... 52
SECTION 5.2. Payment of Obligations.......................................... 55
SECTION 5.3. Maintenance of Property; Insurance.............................. 56
SECTION 5.4. Conduct of Business............................................. 56
SECTION 5.5. Compliance with Laws............................................ 56
SECTION 5.6. Inspection of Property, Books and Records....................... 57
SECTION 5.7. Existence....................................................... 57
SECTION 5.8. Financial Covenants............................................. 57
SECTION 5.9. Restriction on Fundamental Changes; Operation and Control....... 59
SECTION 5.10. Changes in Business............................................. 59
SECTION 5.11. Sale of the Property............................................ 59
SECTION 5.12. Fiscal Year; Fiscal Quarter..................................... 59
SECTION 5.13. Margin Stock.................................................... 59
SECTION 5.14. Development Activities.......................................... 59
SECTION 5.15. Use of Proceeds................................................. 60
SECTION 5.16. Borrower Status................................................. 60
ARTICLE VI
DEFAULTS.................................................. 60
SECTION 6.1. Events of Default............................................... 60
SECTION 6.2. Rights and Remedies............................................. 64
SECTION 6.3. Notice of Default............................................... 65
ARTICLE VII
THE LEAD AGENT............................................. 66
SECTION 7.1. Appointment and Authorization................................... 66
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SECTION 7.2. Lead Agent and Affiliates....................................... 66
SECTION 7.3. Action by Lead Agent............................................ 66
SECTION 7.4. Consultation with Experts....................................... 66
SECTION 7.5. Liability of Lead Agent......................................... 66
SECTION 7.6. Indemnification................................................. 67
SECTION 7.7. Credit Decision................................................. 67
SECTION 7.8. Successor Lead Agent............................................ 67
SECTION 7.9. Lead Agent's Fee................................................ 68
SECTION 7.10. Copies of Notices............................................... 68
ARTICLE VIII
CHANGE IN CIRCUMSTANCES.................................... 68
SECTION 8.1. Basis for Determining Interest Rate Inad equate or Unfair....... 68
SECTION 8.2. Illegality...................................................... 69
SECTION 8.3. Increased Cost and Reduced Return............................... 70
SECTION 8.4. Taxes........................................................... 71
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans...... 74
ARTICLE IX
MISCELLANEOUS.................................. 75
SECTION 9.1. Notices......................................................... 75
SECTION 9.2. No Waivers...................................................... 75
SECTION 9.3. Expenses; Indemnification....................................... 76
SECTION 9.4. Sharing of Set-Offs............................................. 77
SECTION 9.5. Amendments and Waivers.......................................... 78
SECTION 9.6. Successors and Assigns.......................................... 79
SECTION 9.7. Governing Law; Submission to Jurisdic tion...................... 81
SECTION 9.8. Marshaling; Recapture........................................... 82
SECTION 9.9. Counterparts; Integration; Effectiveness........................ 82
SECTION 9.10. WAIVER OF JURY TRIAL............................................ 82
SECTION 9.11. Survival........................................................ 82
SECTION 9.12. Domicile of Loans............................................... 83
SECTION 9.13. Limitation of Liability......................................... 83
Exhibit A - Form of Note
Exhibit B - Mortgaged Properties
Exhibit C - Assignment and Assumption Agreement
Exhibit D - Allocated Mortgaged Property Loan Amounts
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EXHIBIT A
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of May 21, 1997, among ▇▇▇▇▇▇
REALTY, L.P.(the "Borrower"), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Bank
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and as Lead Agent for the Banks and the BANKS listed on the signature pages
hereof (the "Banks").
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The parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have
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the following meanings:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
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Section 2.6(b).
"Administrative Questionnaire" means, with respect to each Bank, an
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administrative questionnaire in the form prepared by the Lead Agent and
submitted to the Lead Agent (with a copy to the Borrower) duly completed by such
Bank.
"Agreement" means this Revolving Credit Agree Agreement as the same
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may from time to time hereafter be modified, supplemented or amended.
"Allocated Mortgaged Property Loan Amount" means (x) as to the
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Mortgaged Properties as of the date hereof, sixty percent (60%) of the Appraised
Value there of, and (y) as to properties that become Mortgaged Properties after
the date hereof, an amount equal to the lesser of sixty percent (60%) of (x) the
purchase price thereof and (y) the Appraised Value thereof. The Allocated
Mortgaged Property Loan Amounts for the Mortgaged Properties as of the date
hereof are set forth on Exhibit D attached hereto and made a part hereof.
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"Annual EBITDA" means, measured as of the last day of each calendar
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quarter, an amount derived from (i) total revenues relating to all Real Property
Assets of the Borrower and its Consolidated Subsidiaries or to the
Borrower's interest in Minority Holdings for the previous four consecutive
calendar quarters including the quarter then ended, on an accrual basis with
adjustments for the straight-lining of rents, plus (ii) interest and other
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income of the Borrower and its Consolidated Subsidiaries, including, without
limitation, real estate service revenues, for such period, less (iii) total
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operating expenses and other expenses relating to such Real Property Assets and
to the Borrower's interest in Minority Holdings for such period (other than
interest, taxes, depreciation, amortization, and other non-cash items), less
----
(iv) total corporate operating expenses (including general overhead expenses)
and other expenses of the Borrower, its Consolidated Subsidiaries and the
Borrower's interest in Minority Holdings (other than interest, taxes,
depreciation, amortization and other non-cash items), for such period.
"Applicable Interest Rate" means the lesser of (x) the rate at which
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the interest rate applicable to any floating rate Debt could be fixed, at the
time of calculation, by the Borrower entering into an unsecured interest rate
swap agreement (or, if such rate is incapable of being fixed by entering into an
unsecured interest rate swap agreement at the time of calculation, a reasonably
determined fixed rate equivalent), and (y) the rate at which the interest rate
applicable to such floating rate Debt is actually capped, at the time of
calculation, if the Borrower has entered into an interest rate cap agreement
with respect thereto or if the documentation for such Debt contains a cap.
"Applicable Lending Office" means, with respect to any Bank, (i) in
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the case of its Base Rate Loans, its Domestic Lending Office and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Appraisals" means, with respect to each Mortgaged Property, the
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independent appraisals, prepared and delivered to the Lead Agent at the
Borrower's sole cost and expense and conforming to the regulations promulgated
pursuant to FIRREA, initially completed by ▇▇▇▇▇▇▇ Tener Real Estate Services,
Inc. in the case of Appraisals for the Mortgaged Properties as of the date of
this Agreement.
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"Appraised Value" means the value of any Mortgaged Property as
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indicated on the most recent Appraisal thereof.
"Assignee" has the meaning set forth in Section 9.6(c).
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"Assignments" means, the Assignment(s) of Leases, Rents and Security
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Deposits, each executed by the Borrower on or prior to the date hereof or as of
the date of acquisition of a Mortgaged Property, securing all or a portion of
the Loans.
"Bank" means each bank listed on the signature pages hereof, each
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Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors.
"Bankruptcy Code" means Title 11 of the United States Code, entitled
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"Bankruptcy", as amended from time to time, and any successor statute or
statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher
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of (i) the Prime Rate for such day and (ii) the sum of the Federal Funds Rate
plus .50%.
"Base Rate Borrowing" means a Borrowing comprised of Base Rate Loans.
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"Base Rate Loan" means a Loan to be made by a Bank as a Base Rate Loan
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in accordance with the applicable Notice of Borrowing or pursuant to Article
VIII.
"Benefit Arrangement" means at any time an employee benefit plan
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within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means ▇▇▇▇▇▇ Realty, L.P. and its successors.
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"Borrowing" means a borrowing hereunder consisting of Loans made to
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the Borrower at the same time by the Banks pursuant to Article II. A Borrowing
is a "Domestic Borrowing" if such Loans are Base Rate Loans or a "Euro-Dollar
------------------ -----------
Borrowing" if such Loans are Euro-Dollar Loans.
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3
"Capital Expenditures" means, for any period, the sum of all
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expenditures (whether paid in cash or accrued as a liability) by the Borrower
which are capitalized on the consolidated balance sheet of the Borrower in
conformity with GAAP, but less (i) all expenditures made with respect to the
acquisition by the Borrower and its Consolidated Subsidiaries of any interest in
real property within nine months after the date such interest in real property
is acquired and (ii) capital expenditures made from the proceeds of insurance or
condemnation awards (or payments in lieu thereof) or indemnity payments
received during such period by Borrower or any of its Consolidated Subsidiaries
from third parties.
"Capital Leases" means, with respect to any Person, any lease of any
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property by such Person as lessee that, in conformity with GAAP, is required to
be accounted for as a capital lease.
"Cash or Cash Equivalents" means (i) cash, (ii) direct obligations of
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the United States Government, including, without limitation, treasury bills,
notes and bonds, (iii) interest bearing or discounted obligations of Federal
agencies and Government sponsored entities or pools of such instruments offered
by banks rated AA or better by S&P or Aa2 by ▇▇▇▇▇'▇ and dealers, including,
without limitation, Federal Home Loan Mortgage Corporation participation sale
certificates, Government National Mortgage Association modified pass-through
certificates, Federal National Mortgage Association bonds and notes, Federal
Farm Credit System securities, (iv) time deposits, domestic and Eurodollar
certificates of deposit, bankers acceptances, commercial paper rated at least A-
1 by S&P and P-1 by ▇▇▇▇▇'▇, and/or guaranteed by an Aa rating by ▇▇▇▇▇'▇, an AA
rating by S&P, or better rated credit, floating rate notes, other money market
instru ments and letters of credit each issued by banks which have a long-term
debt rating of at least AA by S&P or Aa2 by ▇▇▇▇▇'▇, (v) obligations of domestic
corporations, including, without limitation, commercial paper, bonds,
debentures, and loan participations, each of which is rated at least AA by S&P,
and/or Aa2 by ▇▇▇▇▇'▇, and/or unconditionally guaranteed by an AA rating by S&P,
an Aa2 rating by ▇▇▇▇▇'▇, or better rated credit, (vi) obligations issued by
states and local governments or their agencies, rated at least MIG-1 by ▇▇▇▇▇'▇
and/or SP-1 by
4
S&P and/or guaranteed by an irrevocable letter of credit of a bank with a long-
term debt rating of at least AA by S&P or Aa2 by ▇▇▇▇▇'▇, (vii) repurchase
agreements with major banks and primary government securities dealers fully
secured by U.S. Government or agency collateral equal to or exceeding the
principal amount on a daily basis and held in safekeeping, (viii) real estate
loan pool participations, guaranteed by an entity with an AA rating given by S&P
or an Aa2 rating given by ▇▇▇▇▇'▇, or better rated credit, and (ix) shares of
any mutual fund that has its assets primarily invested in the types of
investments referred to in clauses (i) through (v).
"Closing Date" means the date on which the Lead Agent shall have
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received the documents specified in or pursuant to Section 3.1.
"Collateral" means all property and interests in property now owned or
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hereafter acquired in or upon which a Lien has been or is purported or intended
to have been granted to the Lead Agent on behalf of the Banks under each of the
Mortgages.
"Combined Asset Value" shall mean the book value of the assets of the
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Borrower (including Minority Holdings) and its Consolidated Subsidiaries,
calculated on a consolidated basis, in accordance with GAAP, but without
deduction for depreciation and net of monetary obligations which are not for
borrowed money (such as accounts payable and working capital liabilities).
"Commitment" means, with respect to each Bank, the amount committed by
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such Bank pursuant to this Agreement with respect to any Loans, as such amount
may be reduced from time to time pursuant to Sections 2.8 and 2.9.
"Consolidated Subsidiary" means at any date any Subsidiary or other
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entity which is consolidated with the Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated
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stockholders' equity of the Borrower (determined on a book basis), less its
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition "Intangible Assets" means with respect to any such intangible
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assets, the amount (to the extent reflected in determining such consolidated
stockholders' equity) of (i) all write-ups subsequent to December 31, 1996 in
the book value of any asset owned by the Borrower or a Consolidated Subsidiary
and (ii) good will, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry forwards,
5
copyrights, organization or developmental expenses and other intangible assets.
"Contingent Obligation" as to any Person means, without duplication,
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(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements,
guaranteeing partially or in whole any non-recourse Debt, lease, dividend or
other obligation, exclusive of contractual indemnities (including, without
limitation, any indemnity or price-adjustment provision relating to the
purchase or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income
guaranty, the sum of all payments required to be made thereunder (which in the
case of an operating income guaranty shall be deemed to be equal to the debt
service for the note secured there by), calculated at the Applicable Interest
Rate, through (i) in the case of an interest or interest and principal guaranty,
the stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (ii) in the case of an operating
income guaranty, the date through which such guaranty will remain in effect, and
(b) with respect to all guarantees not covered by the preceding clause (a), an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as recorded on the balance sheet and
on the footnotes to the most recent financial statements of the applicable
Borrower required to be delivered pursuant to Section 4.6 hereof.
Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a
claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person
6
and another Person (but only to the extent such guaranty is recourse, directly
or indirectly to the applicable Borrower), the amount of the guaranty shall be
deemed to be 100% thereof unless and only to the extent that such other Person
has delivered Cash or Cash Equivalents to secure all or any part of such
Person's guaranteed obligations, (ii) in the case of joint and several
guarantees given by a Person in whom the applicable Borrower owns an interest
(which guarantees are non-recourse to the applicable Borrower), to the extent
the guarantees, in the aggregate, exceed 15% of total real estate investments,
the amount in excess of 15% shall be deemed to be a Contingent Obligation of the
applicable Borrower, and (iii) in the case of a guaranty (whether or not joint
and several) of an obligation otherwise constituting Debt of such Person, the
amount of such guaranty shall be deemed to be only that amount in excess of the
amount of the obligation constituting Debt of such Person. Notwithstanding
anything contained herein to the contrary, "Contingent Obligations" shall not be
deemed to include guarantees of Unused Commitments or of construction loans to
the extent the same have not been drawn.
"Debt" of any Person means, without duplication, (A) as shown on such
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Person's consolidated balance sheet (i) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property and, (ii) all
indebtedness of such Person evidenced by a note, bond, debenture or similar
instrument (whether or not disbursed in full in the case of a construction
loan), (B) the face amount of all letters of credit issued for the account of
such Person and, without duplication, all unreimbursed amounts drawn thereunder,
(C) all Contingent Obligations of such Person, (D) all payment obligations of
such Person under any interest rate protection agree ment (including, without
limitation, any interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements which were not entered
into specifically in connection with Debt set forth in clauses (A), (B) or (C)
hereof. For purposes of this Agreement, Debt (other than Contingent
Obligations) of the Borrower shall be deemed to include only the Borrower's pro
rata share (such share being based upon the Borrower's percentage ownership
interest as shown on the Borrower's annual audited financial statements) of the
Debt of any Person in which the applicable Borrower, directly or indirectly,
owns an interest, provided that
7
such Debt is nonrecourse, both directly and indirectly, to the applicable
Borrower.
"Debt Service" shall mean, measured as of the last day of each
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calendar quarter, an amount equal to the greater of (i) interest actually
payable by the Borrower on the Loans for the previous four consecutive quarters
including the quarter then ended and (ii) the sum of the Pro-Forma Debt Service
for the previous four consecutive quarters including the quarter then ended.
"Default" means any condition or event which constitutes an Event of
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Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
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other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
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within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrower and
the Lead Agent; provided that no Bank shall be permitted to change its Domestic
Lending Office if as a result of such change either (i) pursuant to the
provisions of Section 8.1 or Section 8.2, Borrower would be unable to maintain
any Loans as Euro-Dollar Loans; or (ii) Borrower would be required to make any
payment to such Bank pursuant to the provisions of Section 8.3 or Section 8.4.
"Due Diligence Package" has the meaning provided in Section 3.3.
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"Environmental Affiliate" means any partnership, or joint venture,
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trust or corporation in which an equity interest is owned by the Borrower,
either directly or indirectly.
"Environmental Approvals" means any permit, license, approval,
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ruling, variance, exemption or other authorization required under applicable
Environmental Laws.
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"Environmental Claim" means, with respect to any Person, any notice,
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claim, demand or similar communication (written or oral) by any other Person
alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damage, personal
injuries, fines or penalties arising out of, based on or resulting from (i) the
presence, or release into the environment, of any Material of Environmental
Concern at any location, whether or not owned by such Person or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law, in each case as to which could reasonably be expected to have
a Material Adverse Effect.
"Environmental Indemnity" means the Environmental Indemnity executed
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by the Borrower on or prior to the date hereof or as of the date of the addition
of a Real Property Asset to the Mortgaged Properties.
"Environmental Laws" means any and all federal, state, local and
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foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Material of Environmental
Concern or hazardous wastes or the clean-up or other remediation thereof.
"Environmental Report" has the meaning set forth in Section 4.7.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, or any successor stat ute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
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controlled group of corporations and all trades or businesses (whether or not
incor porated) under common control which, together with the
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Borrower or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
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"Euro-Dollar Business Day" means any Domestic Business Day on which
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commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
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branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Lead Agent; provided that no Bank shall be permitted to change
its Euro-Dollar Lending Office if as a result of such change either (i) pursuant
to the provisions of Section 8.1 or Section 8.2, Borrower would be unable to
maintain any Loans as Euro-Dollar Loans; or (ii) Borrower would be required make
any payment to such Bank pursuant to the provisions of Sections 8.3 or Section
8.4.
"Euro-Dollar Loan" means a Loan to be made by a Bank as a Euro-Dollar
----------------
Loan in accordance with the applicable Notice of Borrowing or Notice of
Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
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2.6(b).
"Event of Default" has the meaning set forth in Section 6.1.
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"Federal Funds Rate" means, for any day, the rate per annum (rounded
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upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day; provided that (i) if such day is not a Domestic
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Business Day, the Federal Funds Rate
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for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the average rate
quoted to ▇▇▇▇▇▇ on such day on such transactions as determined by the Lead
Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System as constituted from time to time.
"FFO" means "funds from operations," defined to mean net income (or
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loss) (computed in accordance with GAAP), excluding gains (or losses) from debt
restructurings and sales of properties, plus depreciation and amortization,
after adjustments for Minority Holdings. Adjustments for Minority Holdings
will be calculated to reflect FFO on the same basis.
"Financing Statements" means those Uniform Commercial Code Financing
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Statements executed by the Borrower on or prior to the date hereof or as of the
date of an addition of a Real Property Asset to the Mortgaged Properties for the
purpose of perfecting the security interest in any personal property, both
tangible and intangible, serving as collateral for the Loans pursuant to any
Loan Document.
"FIRREA" means the Financial Institutions Reform, Recovery and
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Enforcement Act of 1989, as amended.
"FMV Cap Rate" means 9.50%.
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"GAAP" means generally accepted accounting principles recognized as
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such in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the circumstances
as of the date of determination.
"Governmental Authority" means any Federal, state or local government
----------------------
or any other political subdivision thereof or agency exercising executive,
legislative,
11
judicial, regulatory or administrative functions having jurisdiction over the
Borrower or any Mortgaged Property.
"Group of Loans" means, at any time, a group of Loans consisting of
--------------
(i) all Loans which are Base Rate Loans at such time, or (ii) all Loans which
are Euro-Dollar Loans having the same Interest Period at such time; provided
--------
that, if a Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Section 8.2 or 8.4, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
"Improvements" has the meaning ascribed to it in each of the
------------
Mortgages.
"Indemnitee" has the meaning set forth in Section 9.3(b).
----------
"Interest Period" means: (1) with respect to each Euro-Dollar
---------------
Borrowing, the period commencing on the date of such Borrowing or of any Notice
of Interest Election with respect to such Borrowing and ending one, two, three
or six months thereafter, as the Borrower may elect in the applicable Notice of
Borrowing or Notice of Interest Election; provided that:
--------
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically cor-
responding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) if any Interest Period includes a date on which a payment of
principal of the Loans is required to be made under Section 2.9 but does
not end
12
on such date, then (i) the principal amount (if any) of each Euro-Dollar
Loan required to be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of each such Euro-
Dollar Loan shall have an Interest Period determined as set forth above.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing or Notice of Interest Rate Election and ending 30 days
thereafter; provided that:
--------
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c)(i) above) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment of
principal of the Loans is required to be made under Section 2.9 but does
not end on such date, then (i) the principal amount (if any) of each Base
Rate Loan required to be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of each such Base Rate
Loan shall have an Interest Period determined as set forth above.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, or any successor statute.
"Lead Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York in its
----------
capacity as Lead Agent for the Banks hereunder, and its successors in such
capacity.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, each of
the Borrower and any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
13
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and "Loans" means
---- -----
Base Rate Loans or Euro-Dollar Loans or any combination of the foregoing.
"Loan Amount" has the meaning set forth in Section 2.1(a).
-----------
"Loan Documents" means this Agreement, the Notes, the Mortgages, the
--------------
Assignments, the Environmental Indemnity, the Financing Statements and any
related documents.
"London Interbank Offered Rate" has the meaning set forth in Section
-----------------------------
2.6(b).
"LTV Ratio" means, as of any date of determination, the ratio,
---------
expressed as a percentage, of the aggregate amount of the Loans outstanding as
of such date of determination to the Mortgaged Properties Value as of the date
of determination.
"Margin Stock" shall have the meaning provided such term in Regulation
------------
U and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
business, operations, properties or assets of the Borrower or (ii) the ability
of the Borrower to perform its obligations hereunder in all material respects,
including to pay interest and principal.
"Material Plan" means at any time a Plan having aggregate Unfunded
-------------
Liabilities in excess of $5,000,000.
"Material of Environmental Concern" means and includes pollutants,
---------------------------------
contaminants, hazardous wastes, and toxic, radioactive, caustic or otherwise
hazardous substances, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.
"Maturity Date" has the meaning set forth in Section 2.8.
-------------
14
"Maximum Total Debt Ratio" means the ratio as of the date of
------------------------
determination of (i) the sum of (x) the aggregate Debt of the Borrower and its
Consolidated Subsidiaries and (y) the Borrower's pro rata share of the Debt of
any Subsidiaries of the Borrower which are not Consolidated Subsidiaries, at the
time of determination to (ii) the Tangible FMV of the Borrower and its
Consolidated Subsidiaries.
"Minimum Debt Service Coverage" means as of the last day of each
-----------------------------
calendar quarter, Net Operating Cash Flow equal to or greater than 175% of Debt
Service.
"Minority Holdings" means partnerships, limited liability companies
-----------------
and corporations held or owned by the Borrower which are not consolidated with
the Borrower on its financial statements.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
-------
thereto.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in its
------
individual capacity.
"Mortgaged Properties" means, as of any date, the Real Property Assets
--------------------
listed in Exhibit B attached hereto and made a part hereof, each of which is
---------
100% owned in fee (or leasehold in the case of assets listed as such on Exhibit
-------
B) by the Borrower, together with all Real Property Assets which have become
-
part of the Mortgaged Properties on or prior to such date in accordance with
Section 3.3 and excluding any Mortgaged Properties which have been released from
this Agreement, the Mortgage and the other Loan Documents as of such date in
accordance with Sections 3.4(c) and 5.11 and all other terms of this Agreement.
"Mortgaged Properties Value" means the aggregate of the Appraised
--------------------------
Value of each of the Mortgaged Properties.
"Mortgages" shall mean the mortgage(s), deed(s) to secure debt, and/or
---------
deed(s) of trust executed by the Borrower on or prior to the date hereof or as
of the date of the addition of a Real Property Asset to the Mortgaged
Properties, securing all or a portion of the Loans, each of which Mortgages
shall be a first mortgage lien with
15
respect to each Real Property Asset which is the subject thereof.
"Multiemployer Plan" means at any time an employee pension benefit
------------------
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Net Operating Cash Flow" means, as of any date of determination, with
-----------------------
respect to all Mortgaged Properties, Property Income for the previous four
consecutive quarters including the quarter then ended, but less (x) Property
Expenses with respect to all such Mortgaged Properties for the previous four
consecutive quarters including the quarter then ended, and (y) the greater of
(i) Capital Expenditures which are not related to new construction for the
previous four consecutive quarters including the quarter then ended, and (ii)
appropriate reserves for replacements of not less than $.20 per square foot of
space subject to leases per annum for each Mortgaged Property which is an office
property, and $.15 per square foot of space subject to leases per annum for each
Mortgaged Property which is an industrial property.
"Non-Recourse Debt" means Debt of the Borrower on a consolidated basis
-----------------
for which the right of recovery of the obligee thereof is limited to recourse
against the Real Property Assets securing such Debt (subject to such limited
exceptions to the non-recourse nature of such Debt such as fraud,
misappropriation, misapplication and environmental indemnities, as are usual and
customary in like transactions at the time of the incurrence of such Debt).
"Notes" means, collectively, the promissory notes of the Borrower,
-----
each substantially in the form of Exhibit A hereto, evidencing the obligation of
---------
the Borrower to repay the Loans, and "Note" means any one of such promissory
----
notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
-------------------
16
"Notice of Interest Election" has the meaning set forth in Section
---------------------------
2.14(a).
"Obligations" means all obligations, liabilities and indebtedness of
-----------
every nature of the Borrower from time to time owing to any Bank under or in
connection with this Agreement or any other Loan Document.
"Outstanding Balance" means the aggregate outstanding and unpaid
-------------------
principal balance of all Loans.
"Parent" means, with respect to any Bank, any Person controlling such
------
Bank.
"Participant" has the meaning set forth in Section 9.6(b).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted LTV Ratio" means 60%.
-------------------
"Person" means an individual, a corporation, a partnership, a limited
------
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan (other than
----
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇
----------
in New York City from time to time as its Prime Rate.
17
"Pro-Forma Debt Service" means, for any calendar quarter, the amount
----------------------
of debt service payments determined by applying a 25-year mortgage style
amortization schedule to the Loans outstanding as of the last day of such
calendar quarter, using an interest rate equal to the Treasury Rate plus 1.75%.
"Property Expenses" means, when used with respect to any Mortgaged
-----------------
Property, the costs of maintaining such Real Property Asset which are the
responsibility of the owner thereof and that are not paid directly by the
tenant thereof, including, without limitation, taxes, insurance, repairs and
maintenance, but provided that if such tenant is more than 60 days in arrears in
the payment of base or fixed rent, then such costs will also constitute
"Property Expenses", but excluding depreciation, amortization and interest
costs.
"Property Income" means, when used with respect to any Mortgaged
---------------
Property, cash rents and other cash revenues received in the ordinary course
therefrom, including, without limitation, revenues from any parking leases and
lease termination fees amortized over the remaining term of the lease for which
such termination fee was received (other than the paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent).
"Property Release" has the meaning set forth in Section 3.4(c).
----------------
"Real Property Assets" means as of any time, the real property assets
--------------------
owned directly or indirectly by the Borrower at such time.
"Recourse Debt" shall mean Debt of the Borrower or any Consolidated
-------------
Subsidiary that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of ▇▇▇▇▇▇.
--------------
"Regulation U" means Regulation U of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
18
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, emptying, deposit, discharge, leaching or migration.
"Release Date" has the meaning set forth in Section 3.4(c).
------------
"Request to Extend" has the meaning set forth in Section 2.8(b).
-----------------
"Required Banks" means, at any time, Banks having at least 51% of the
--------------
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Requirements" means all present and future laws, statutes, codes,
------------
ordinances, orders, judgments, decrees, injunctions, rules, regulations and
requirements of every Governmental Authority having jurisdiction over any
Mortgaged Property and all restrictive covenants applicable to any Mortgaged
Property.
"S&P" means Standard & Poor's Ratings Services, a Division of The
---
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Solvent" means, with respect to any Person, that the fair saleable
-------
value of such Person's assets exceeds the Debts of such Person.
"Subsidiary" means any corporation or other entity of which securities
----------
or other ownership interests representing either (i) ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions or (ii) a majority of the economic interest therein, are at the time
directly or indirectly owned by the Borrower.
"Survey" means a survey (prepared in accordance with the ALTA
------
appropriate specifications) for each Mortgaged Property, prepared or re-
certified on a date not earlier than six (6) months prior to the date of the
applicable Mortgage, by a land surveyor duly licensed in the state in which such
Mortgaged Property is located.
19
"Tangible FMV" means the sum of (x) (i) with respect to Real Property
------------
Assets owned by the Borrower or its Consolidated Subsidiaries for a period of at
least one year, the quotient of Net Operating Income with respect to such Real
Property Assets determined for the four fiscal quarter period ending as of the
last day of the previous calendar quarter, as divided by the FMV Cap Rate, (ii)
with respect to Real Property Assets owned the Borrower or its Consolidated
Subsidiaries for a period of less than six months, the purchase price of such
Real Property Assets and (iii) with respect to Real Property Assets owned by the
Borrower or its Consolidated Subsidiaries for a period of at least six months
but less than one year, the lesser of (A) the purchase price of such Real
Property Assets or (B) the quotient of Property Income attributable to such Real
Property Assets for the period during which the Borrower or its Consolidated Sub
sidiaries owned such Real Property Assets, but less Property Expenses
attributable to such Real Property Assets for the period during which the
Borrower or its Consolidated Subsidiaries owned such Real Property Assets, on
an annualized basis, as divided by the FMV Cap Rate and (y) Cash or Cash
Equivalents of the Borrower and its Consolidated Subsidiaries as of the date of
determination.
"Term" has the meaning set forth in Section 2.8.
----
"Title Company" means, with respect to each Mortgaged Property, a
-------------
title insurance company of recognized national standing.
"Title Commitment" means, for each Mortgaged Property, an ALTA fee or
----------------
leasehold title commitment or title policy issued by the Title Company.
"Total Debt Service" shall mean, as of the last day of each calendar
------------------
quarter, an amount equal to the sum of (i) interest (whether accrued, paid or
capitalized) actually payable by Borrower on its Debt for the previous four
consecutive quarters including the quarter then ended, plus (ii) scheduled
payments of principal on such Debt, whether or not paid by the Borrower
(excluding balloon payments) for the previous four consecutive quarters
including the quarter then ended.
20
"Treasury Rate" means, as of any date, a rate equal to the annual
-------------
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten-year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the Lead Agent
shall select, in its reasonable discretion, an alternate basis for the
determination of Treasury yield for U.S. Treasury Constant Maturity Series with
ten-year maturities.
"Unfunded Liabilities" means, with respect to any Plan at any time,
--------------------
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed
by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
-------------
States and the District of Columbia, but excluding its territories and
possessions.
"Unused Commitments" means an amount equal to all unadvanced funds
------------------
(other than unadvanced funds in connection with any construction loan) which any
third party is obligated to advance to the Borrower or otherwise, pursuant to
any Loan Document, written instrument or otherwise.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
------------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most
21
recent audited consolidated financial statements of the Borrower delivered to
the Lead Agent and the Banks; provided that, if the Borrower notifies the Lead
--------
Agent and the Banks that the Borrower wishes to amend any covenant in Article V
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Lead Agent notifies the Borrower that the Required Banks wish to
amend Article V for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
------------------- ---------
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing
----
comprised of Euro-Dollar Loans).
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend.
-------------------
(a) Each Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make the Loans to the Borrower pursuant to this Section
from time to time during the Term in amounts such that the aggregate principal
amount of the Loans by such Bank at any one time outstanding shall not exceed
the amount of its Commitment. The aggregate amount of Loans to be made
hereunder shall not exceed One Hundred Fifty Million Dollars ($150,000,000)
(the Loan Amount"). Each Borrowing under this subsection (a) shall be in an
-----------
aggregate principal amount of at least $2,500,000, or an integral multiple of
$500,000 in excess thereof and shall be made from the several Banks ratably in
proportion to their respective Commitments. Subject to the limitations set
forth herein, any amounts repaid may be reborrowed. Notwithstanding anything
to the contrary, the number of new
22
Borrowings shall be limited to five (5) Borrowings per month.
(b) Notwithstanding anything in the preceding subparagraph (a) to the
contrary, the Loan Amount shall in no event exceed (and no Bank shall be deemed
to have committed to fund its pro rata share of an amount which exceeds) (A) the
--- ----
Mortgaged Properties Value or (B) an amount which would result in the violation
of any provision of Section 5.8.
SECTION 2.2. Notice of Borrowing. The Borrower shall give the Lead
-------------------
Agent notice (a "Notice of Borrowing") not later than 11:30 a.m. (New York City
-------------------
time) (x) one Domestic Business Day before each Base Rate Borrowing or (y) the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day
in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans,
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period, and
(v) the intended use for the proceeds of such Borrowing.
SECTION 2.3. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Borrowing, the Lead Agent shall
notify each Bank on the same day as it receives the Notice of Borrowing of the
contents thereof and of such Bank's share of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
23
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Borrowing, each Bank shall make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Lead Agent
at its address referred to in Section 9.1. The Lead Agent will make the funds
so received from the Banks available to the Borrower at the Lead Agent's
aforesaid address. Upon any change in any of the Commitments in accordance
herewith, there shall be an automatic adjustment to such participations to
reflect such changed shares.
(c) Unless the Lead Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Lead Agent such Bank's share of such Borrowing, the Lead Agent may assume that
such Bank has made such share available to the Lead Agent on the date of such
Borrowing in accordance with subsection (b) of this Section 2.3 and the Lead
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Bank shall not
have so made such share available to the Lead Agent, such Bank and the Borrower
severally agree to repay to the Lead Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Lead Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.6 and (ii) in the case of such Bank, the Federal
Funds Rate. If such Bank shall repay to the Lead Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.4. Notes.
-----
(a) The Loans shall be evidenced by the Notes, each of which shall be
payable to the order of each Bank for the account of its Applicable Lending
Office in an amount equal to each such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower and the Lead Agent,
request that its Loans of a particular type be evidenced by a separate Note in
an amount
24
equal to the aggregate unpaid principal amount of such Loans. Each such Note
shall be in substantially the form of Exhibit A hereto, with appropriate
---------
modifications to reflect the fact that it evidences solely Loans of the relevant
type. Each reference in this Agreement to the "Note" of such Bank shall be
----
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a), the
Lead Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto, and may,
if such Bank so elects in connection with any transfer or enforcement of its
Note, endorse on the schedule forming a part thereof appropriate notations to
evidence the foregoing information with respect to each such Loan then
outstanding; provided that the failure of any Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by the Borrower so
to endorse its Note and to attach to and make a part of its Note a continuation
of any such schedule as and when required.
(d) There shall be no more than seven (7) Euro-Dollar Borrowings
outstanding at any one time pursuant to this Agreement.
SECTION 2.5. Maturity of Loans. The Loans shall mature, and the
-----------------
principal amount thereof shall be due and payable, on the Maturity Date.
SECTION 2.6. Interest Rates.
--------------
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the sum of twenty-five (25) basis
points plus the Base Rate for such day. Such interest shall be payable for each
Interest Period on the last day thereof.
(b) Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day
25
during the Interest Period applicable thereto, at a rate per annum equal to the
sum of 1.50% plus the Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
"Adjusted London Interbank Offered Rate" applicable to any Interest
--------------------------------------
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that percentage
------------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
"London Interbank Offered Rate" applicable to any Interest Period
-----------------------------
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
the Reference Bank in the London interbank market at approximately 11:00 a.m.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c) In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal amount of the Loans,
and, to
26
the extent permitted by law, overdue interest in respect of all Loans, shall
bear interest at the annual rate of the sum of the Prime Rate and four percent
(4%).
(d) The Lead Agent shall determine each interest rate applicable to
the Loans hereunder. The Lead Agent shall give prompt notice to the Borrower
and the Banks of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(e) The Reference Bank agrees to use its best efforts to furnish
quotations to the Lead Agent as contemplated by this Section. If the Reference
Bank does not furnish a timely quotation, the provisions of Section 8.1 shall
apply.
SECTION 2.7. Fees.
----
(a) Commitment Fee. During the Term, the Borrower shall pay Lead
--------------
Agent for the account of the Banks ratably in proportion to their respective
Commitments, a commitment fee at an annual rate of .25% on the daily average
undrawn Commitments in any given quarter, payable quarterly, in arrears.
(b) Reserved.
--------
(c) Extension Fee. Within one week of the notification by the Lead
-------------
Agent to the Borrower that a Request to Extend has been accepted pursuant to
Section 2.08(b), the Borrower shall pay to the Lead Agent for the account of the
Banks ratably in proportion to their Commitments an extension fee of 1/4 of 1%
of the Commitments then outstanding.
(d) Fees Non-Refundable. All fees set forth in this Section 2.7 shall
-------------------
be deemed to have been earned on the date payment is due in accordance with the
provisions hereof and shall be non-refundable. The obligation of the Borrower
to pay such fees in accordance with the provisions hereof shall be binding upon
the Borrower and shall inure to the benefit of the Lead Agent and the Banks
regardless of whether any Loans are actually made.
27
SECTION 2.8. Mandatory Termination. (a) The term (the "Term") of
--------------------- ----
the Commitments shall terminate and expire on May 30, 1999 (the "Maturity
--------
Date").
(b) The Borrower may request a one-year extension of the Maturity
Date by delivering a written request therefor to the Lead Agent not more than
eight months or less than six months prior to the Maturity Date (a "Request to
----------
Extend"). The Lead Agent shall notify the Banks of the receipt of such request
------
and each Bank shall give notice in writing to the Lead Agent not less than five
months prior to the Maturity Date of such Bank's acceptance or rejection of
such request. If all the Banks shall have notified the Lead Agent on or prior to
the date which is five months prior to the Maturity Date that they accept such
request, the Maturity Date shall be extended for one year. If any Bank shall
not have notified the Lead Agent on or prior to the date which is five months
prior to the Maturity Date that it accepts such request, the Maturity Date shall
not be extended. The Lead Agent shall notify the Borrower whether the Request to
Extend has been accepted or rejected as well as which Bank or Banks rejected the
Borrower's Request to Extend.
SECTION 2.9. Mandatory Prepayment.
--------------------
(a) If as of the last day of any calendar quarter the LTV Ratio
exceeds the Permitted LTV Ratio, provided that no Event of Default has occurred
and is continuing, either (i) the Borrower shall add additional Real Property
Assets to the Mortgaged Properties within thirty (30) days of the date of
delivery of the financial statements (or the date on which such statements
should have been delivered) of Borrower with respect to such calendar quarter
the LTV Ratio exceeded the Permitted LTV Ratio, in accordance with the
provisions of Section 3.3, or (ii) the Borrower shall pay to the Lead Agent, for
the account of the Banks, within thirty (30) days of the date of delivery of the
financial statements (or the date on which such statements should have been
delivered) of Borrower with respect to such calendar quarter the LTV Ratio
exceeded the Permitted LTV Ratio, an amount such that the Loans outstanding
subsequent to such payment do not cause the LTV Ratio to exceed the Permitted
LTV Ratio.
(b) In the event that a Mortgaged Property is sold in accordance with
Section 3.4(c) hereof, the Bor-
28
rower shall simultaneously with such sale, prepay to the Lead Agent, for the
account of the Banks, an amount equal to 125% of the Allocated Mortgaged
Property Loan Amount for such Mortgaged Property. Sale of a Mortgaged Property
in violation of this Section 2.9 shall constitute an Event of Default.
(c) In the event that the Minimum Debt Service Coverage is not
maintained as of the last day of a calendar quarter, either (i) the Borrower
will add a Real Property Asset to the Mortgaged Properties in accordance with
this Agreement which, on a pro forma basis (i.e. the Minimum Debt Service
--------- ----
Coverage shall be recalculated to include such Real Property Asset as though the
same had been a Mortgaged Property for the entire applicable period) would
result in compliance with the Minimum Debt Service Coverage or (ii) the
Borrower shall prepay to the Lead Agent, for the account of the Banks, an amount
necessary to cause the Minimum Debt Service Coverage to be in compliance within
ninety (90) days of the date on which the Minimum Debt Service Coverage failed
to be maintained. Failure by the Borrower to comply with the Minimum Debt
Service Coverage within ninety (90) days of the date of such non-compliance
shall be an Event of Default.
SECTION 2.10. Optional Prepayments.
--------------------
(a) The Borrower may, upon at least one Domestic Business Day's
notice to the Lead Agent, prepay to the Lead Agent, for the account of the
Banks, any Base Rate Borrowing in whole at any time, or from time to time in
part in amounts aggregating One Million Dollars ($1,000,000), or an integral
multiple of One Million Dollars ($1,000,000) in excess thereof or, if less, the
outstanding principal balance, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing.
(b) Except as provided in Section 8.2, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.12. Any such prepayment shall be upon at least three (3)
Euro-Dollar Business
29
Days' notice to the Lead Agent. Any notice of prepayment delivered pursuant to
this Section 2.10(b) shall set forth the amount of such prepayment which is
applicable to any Loan made for working capital purposes. Each such optional
prepayment shall be in the amounts set forth in Section 2.10(a) above and shall
be applied to prepay ratably the Loans of the Banks included.
(c) A Borrower may at any time and from time to time cancel all or any
part of the Commitments in amounts aggregating One Million Dollars ($1,000,000),
or an integral multiple of One Million Dollars ($1,000,000) in excess thereof,
by the delivery to the Lead Agent and the Banks of a notice of cancellation upon
at least three (3) Domestic Business Days' notice to Lead Agent and the Banks,
whereupon, all or such portion of the Commitments shall terminate as to the
Banks, pro rata on the date set forth in such notice of cancellation, and, if
--------
there are any Loans then outstanding in an aggregate amount which exceeds the
aggregate Commitments (after giving effect to any such reduction), the Borrower
shall prepay to the Lead Agent, for the account of the Banks, all or such
portion of Loans outstanding on such date in accordance with the requirements of
Sections 2.10(a) and (b). The Borrower shall be permitted to designate in its
notice of cancellation which Loans, if any, are to be prepaid.
(d) Upon receipt of a notice of prepayment or cancellation pursuant to
this Section, the Lead Agent shall promptly, and in any event within one (1)
Domestic Business Day, notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment or cancellation and such
notice shall not thereafter be revocable by the Borrower.
(e) Any amounts so prepaid pursuant to this Section 2.10 may be
reborrowed subject to the other terms of this Agreement. In the event that the
Borrower elects to cancel all or any portion of the Commitments pursuant to
Section 2.10(c) hereof, such amounts may not be reborrowed.
SECTION 2.11. General Provisions as to Payments.
----------------------------------
(a) The Borrower shall make each payment of principal of, and interest
on, the Loans and of fees
30
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Lead
Agent at its address referred to in Section 9.1. The Lead Agent will distribute
to each Bank its ratable share of each such payment received by the Lead Agent
for the account of the Banks on the same day as received by the Lead Agent if
received by the Lead Agent by 3:00 p.m. (New York City time), or, if received by
the Lead Agent after 3:00 p.m. (New York City time), on the immediately
following Domestic Business Day. Whenever any payment of principal of, or
interest on, the Base Rate Loans or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Lead Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that the
Borrower will not make such payment in full, the Lead Agent may assume that the
Borrower has made such payment in full to the Lead Agent on such date and the
Lead Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Lead Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Lead Agent, at the Federal Funds Rate.
SECTION 2.12. Funding Losses. If the Borrower makes any payment of
--------------
principal with respect to any Euro-Dollar Loan (pursuant to Article II, VI or
VIII or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower fails to
31
borrow any Euro-Dollar Loans, after notice has been given to any Bank in
accordance with Section 2.3(a), the Borrower shall reimburse each Bank within
15 days after demand for any resulting loss or expense incurred by it (or by an
existing Participant in the related Loan; provided that no Participant shall be
entitled to receive more than the Bank with respect to which such Participant is
a Participant would be entitled to receive under this Section 2.12), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or failure to borrow, provided that such Bank shall have
--------
delivered to the Borrower a certificate as to the amount of such loss or expense
and the calculation thereof, which certificate shall be conclusive in the
absence of manifest error.
SECTION 2.13. Computation of Interest and Fees. Interest based on
--------------------------------
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Method of Electing Interest Rates.
---------------------------------
(a) The Loans included in each Borrowing shall bear interest initially
at the type of rate specified by the Borrower in the applicable Notice of
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as Euro-
Dollar Loans for an additional Interest Period, in each case effective on the
last day of the then current Interest Period applicable to such Loans.
32
Each such election shall be made by delivering a notice (a "Notice of Interest
------------------
Rate Election") to the Lead Agent at least three (3) Euro-Dollar Business Days
-------------
before the conversion or continuation selected in such notice is to be effective
(unless the relevant Loans are to be continued as Base Rate Loans, in which
case such notice shall be delivered to the Lead Agent no later than 12:00 Noon
(New York City time) at least one (1) Domestic Business Day before such
continuation is to be effective). A Notice of Interest Rate Election may, if it
so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
--------
among the Loans comprising such Group, (ii) the portion to which such notice
applies, and the remaining portion to which it does not apply, are each
$1,000,000 or any larger multiple of $1,000,000, (iii) there shall be no more
than seven (7) Borrowings comprised of Euro-Dollar Loans outstanding at any time
under this Agreement, (iv) no Loan may be continued as, or converted into, a
Euro-Dollar Loan when any Event of Default has occurred and is continuing, and
(v) no Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of the
initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
33
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Lead Agent shall notify each Bank
on the same day as it receives such Notice of Interest Rate Election of the
contents thereof and such notice shall not thereafter be revocable by the
Borrower. If the Borrower fails to deliver a timely Notice of Interest Rate
Election to the Lead Agent for any Group of Euro-Dollar Loans, such Loans shall
be converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the date (the
-------
"Closing Date") when each of the following conditions is satisfied (or waived by
------------
the Lead Agent, such waiver to be evidenced by the funding of the Loans made on
the Closing Date), each document to be dated the Closing Date unless otherwise
indicated:
(a) the Borrower shall have executed and delivered to the Lead Agent a
Note for the account of each Bank dated on or before the Closing Date complying
with the provisions of Section 2.4;
(b) the Borrower shall have executed and delivered to the Lead Agent a
duly executed original of this Agreement;
(c) the Lead Agent shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
counsel for the Borrower, together with opinions of local counsel, in each case
acceptable to the Lead Agent, the Banks and their counsel;
(d) the Lead Agent shall have received all documents the Lead Agent
may reasonably request relating to the existence of the Borrower, the authority
for and the validity of this Agreement and the other Loan Documents, and any
other matters relevant hereto, all in form and substance reasonably satisfactory
to the Lead Agent. Such documentation shall include, without limitation, the
articles of incorporation and by-laws or the partnership agreement and limited
partnership certificate, as appli-
34
cable, of the Borrower, as amended, modified or supplemented to the Closing
Date, each certified to be true, correct and complete by a senior officer of the
Borrower as of a date not more than forty-five (45) days prior to the Closing
Date, together with a good standing certificate from the Secretary of State (or
the equivalent thereof) of the State of Delaware with respect to the Borrower
and a good standing certificate from the Secretary of State (or the equivalent
thereof) of each other State in which the Borrower is required to be qualified
to transact business, each to be dated not more than forty-five (45) days prior
to the Closing Date;
(e) the Lead Agent shall have received all certificates, agreements
and other documents and papers referred to in this Section 3.1 and Section 3.2,
unless otherwise specified, in sufficient counterparts, satisfactory in form
and substance to the Lead Agent in its sole discretion;
(f) the Borrower shall have taken all actions required to authorize
the execution and delivery of this Agreement and the other Loan Documents and
the performance thereof by the Borrower;
(g) the Lead Agent shall be satisfied that the Borrower is not subject
to any present or contingent environmental liability which could reasonably be
expected to have a Material Adverse Effect;
(h) the Lead Agent shall have received an unaudited consolidated
balance sheet and income statement of the Borrower for the fiscal quarter ended
March 31, 1997;
(i) the Lead Agent shall have received wire transfer instructions in
connection with the Loans to be made on the Closing Date;
(j) the Lead Agent shall have received, for its and any other Bank's
account, all fees due and payable pursuant to Section 2.7 hereof on or before
the Closing Date, and the reasonable fees and expenses accrued through the
Closing Date of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP;
35
(k) the Lead Agent shall have received copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower, and the validity and enforceability
against the Borrower, of the Loan Documents, or in connection with any of the
transactions contemplated thereby to occur on or prior to the Closing Date, and
such consents, licenses and approvals shall be in full force and effect;
(l) the Lead Agent shall have received satisfactory reports of
Uniform Commercial Code filing searches conducted by a search firm acceptable
to the Lead Agent with respect to the Mortgaged Properties and the Borrower,
such searches to be conducted in each of the locations specified by the Lead
Agent;
(m) the representations and warranties of the Borrower contained in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date both before and after giving effect to the making of any Loans;
(n) the Lead Agent shall have received certificates of insurance with
respect to each Mortgaged Property demonstrating the coverages required under
this Agreement;
(o) the Lead Agent shall have received with respect to each Mortgaged
Property, a satisfactory Title Commitment to be issued and delivered by each
Title Company in an amount equal to that set forth on Exhibit D annexed hereto;
---------
(p) the Lead Agent shall have received with respect to each Mortgaged
Property, a satisfactory environmental report indicating that (A) the Mortgaged
Property complies with all Environmental Laws in all material respects, (B) is
free of all Material of Environmental Concern in all material respects and (C)
is not subject to any Environmental Claim;
(q) the Lead Agent shall have received with respect to each Mortgaged
Property, a satisfactory engineer's inspection report;
36
(r) the Lead Agent shall have received with respect to each Mortgaged
Property, evidence of compliance with zoning and other local laws, together
with copies of the certificates of occupancy for each thereof (or evidence
satisfactory to the Lead Agent as to why no certificate of occupancy is
required);
(s) the Lead Agent shall have received with respect to each Mortgaged
Property, (i) a description of the Mortgaged Property, (ii) two years of
historical cash flow operating statements, if available, (iii) five years of
cash flow projections (including capital expenditures), (iv) the credit history
of each existing tenant which occupies more than 15% of such Mortgaged Property,
(v) a map and site plan, including an existing Survey of the property dated not
more than six (6) months prior to such submission, (vi) copies of all lease
agreements with each existing tenant which occupies more than 15% of such
Mortgaged Property and lease abstracts thereof, (vii) an estoppel certificate
from each tenant which occupies 15% or more of such Mortgaged Property and
(viii) any investment memorandum prepared by the Borrower; and
(t) receipt by the Lead Agent and the Banks of a certificate of the
chief financial officer or the chief accounting officer of the Borrower
certifying that the Borrower is in compliance with all covenants of the Borrower
contained in this Agreement, including, without limitation, the requirements of
Section 5.8, as of the Closing Date;
(u) the Lead Agent shall have received the Financing Statements
executed by the Borrower, as debtor, naming the Lead Agent, as secured party, to
be filed in the appropriate jurisdictions as is necessary to create perfected
security interests with respect to such portion of the Mortgaged Properties and
the personal property located thereon, with respect to which security interests
are governed by the Uniform Commercial Code;
(v) the Lead Agent shall have received the Mortgages, covering each
Mortgaged Property, duly executed by the Borrower to be recorded in the
appropriate jurisdictions as is necessary to create perfected mortgage liens
with respect to the Mortgaged Properties;
37
(w) the Lead Agent shall have received the Assignments, covering each
Mortgaged Property, duly executed by the Borrower to be recorded in the
appropriate jurisdictions as is necessary to create effective assignments as
contemplated thereby with respect to the Mortgaged Properties;
(x) the Lead Agent shall have received the Environmental Indemnity,
duly executed by the appropriate party acceptable to the Lead Agent in
accordance with the terms of this Agreement;
(y) the Lead Agent shall have received the Appraisals; and
(z) the general partner of the Borrower shall have qualified and
shall intend to continue to qualify as a real estate investment trust under the
Internal Revenue Code.
The Lead Agent shall promptly notify the Borrower and the Banks of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan on the
----------
occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) the Closing Date shall have occurred on or prior to May 23, 1997;
(b) receipt by the Lead Agent of a Notice of Borrowing as required by
Section 2.2;
(c) immediately after such Borrowing, the Outstanding Balance will
not exceed the aggregate amount of the Commitments and with respect to each
Bank, such Bank's pro rata portion of the Loans on the amount permitted
--------
pursuant to Section 2.1(b);
(d) immediately before and after such Borrowing, no Default or Event
of Default shall have occurred and be continuing both before and after giving
effect to the making of such Loans;
(e) the representations and warranties of the Borrower contained in
this Agreement (other than repre-
38
sentations and warranties which speak as of a specific date) shall be true and
correct in all material respects on and as of the date of such Borrowing both
before and after giving effect to the making of such Loans;
(f) no law or regulation shall have been adopted, no order, judgment
or decree of any governmental authority shall have been issued, and no
litigation shall be pending or threatened, which does or, with respect to any
threatened litigation, seeks to enjoin, prohibit or restrain, the making or
repayment of the Loans or any participations therein or the consummation of the
transactions contemplated hereby; and
(g) no event, act or condition shall have occurred after the Closing
Date which, in the reasonable judgment of the Lead Agent or the Required Banks,
as the case may be, has had or is likely to have a Material Adverse Effect.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(c) through (g) of this Section (except that with respect to clause (f), such
representation and warranty shall be deemed to be limited to laws, regulations,
orders, judgments, decrees and litigation affecting the Borrower and not solely
the Banks).
SECTION 3.3. Conditions Precedent to Additional Real Property Assets.
-------------------------------------------------------
(a) All Real Property Assets to be added to the Mortgaged Properties
shall be approved by all of the Banks.
(b) The Borrower shall submit to the Lead Agent and the Banks as
provided in subsection (c) below the materials set forth below (the "Due
---
Diligence Package") relating to each Real Property Asset to be added to the
-----------------
Mortgaged Properties. The Due Diligence Package shall include (i) a description
of the Real Property Asset, (ii) two years of historical cash flow operating
statements, if available, (iii) five years of cash flow projections (including
capital expenditures), (iv) the credit history of each existing tenant which
occupies more than 15% of such Real Property Asset, (v) a map and
39
site plan, including an existing Survey of the property dated not more than
twelve (12) months prior to such submission, (vi) copies of all lease agreements
and abstracts thereof with each existing tenant which occupies more than 15% of
such Real Property Asset, (vii) an environmental report in compliance with
Section 3.1(p), (viii) an engineer's inspection report satisfactory to the Lead
Agent, (ix) an estoppel certificate from each tenant which occupies 15% or more
of the Real Property Asset, (x) evidence of compliance with zoning and other
local laws, (xi) a Title Commitment satisfactory to the Lead Agent, (xii) a
final investment memorandum prepared by the Borrower in connection with the Real
Property Asset, (xiii) a property inspection report satisfactory to the Lead
Agent, and (xiv) an Appraisal. The Borrower shall permit the Lead Agent at all
reasonable times and upon reasonable prior notice to make an inspection of such
Real Property Asset.
(c) The Borrower shall distribute a copy of each item constituting the
Due Diligence Package by overnight mail to each of the Banks for their review
and approval. Failure to respond to the Lead Agent in writing by any Bank
within twenty (20) Domestic Business Days after receipt of the Due Diligence
Package, shall be deemed to be an approval by such Bank of such potential Real
Property Asset.
SECTION 3.4. Mortgaged Properties. (a) On the Closing Date, and on
--------------------
the date of the addition of any Real Property Asset to the Mortgaged Properties,
as applicable, or as soon thereafter as is practicable, the Lead Agent shall
cause all of the Mortgages, the Assignments, the Environmental Indemnities and
the Financing Statements (collectively, the "Security Documents") (which are to
------------------
be recorded and/or filed) to be recorded and/or filed in the appropriate
offices, as security for the Loans, at the Borrower's sole cost and expense.
Upon such addition, the Borrower shall cause to be delivered to the Lead Agent,
at the Borrower's sole cost and expense, the Title Policies, and the Borrower
will cooperate with the Lead Agent and execute such further instruments and
documents and perform such further acts as the Lead Agent or the Title Company
shall reasonably request to carry out the creation and perfection of the liens
and security interests contemplated by the Security Documents.
40
(b) The Lead Agent shall have the annual (based on the date of the
most recent applicable Appraisal) right with respect to each Real Property
Asset which is or becomes a Mortgaged Property, prior to the Maturity Date, to
commission, at the Borrower's sole cost and expense, an updated Appraisal, and
shall deliver copies of each such Appraisal to each Bank and to the Borrower
promptly after receipt thereof by the Lead Agent.
(c) The Borrower shall be entitled to have one (1) or more of the
Mortgaged Properties released from the Lien of the applicable Mortgage, in
connection with a sale of such Mortgaged Property to an unaffiliated third
party; provided that all of the conditions set forth below have been satisfied.
--------
The release of any of the Mortgaged Properties shall be subject to the
satisfaction of the following conditions:
(i) Lead Agent shall have received from the Borrower at least 10
days' prior written notice of the date proposed for such
release (the "Release Date").
------------
(ii) no Event of Default shall have occurred and be continuing
as of the date of such notice and the Release Date.
(iii) on or prior to the Release Date, the Borrower shall pay to
the Lead Agent for the account of the Banks, the amounts
required to be paid pursuant to Section 2.9(b).
(iv) the Borrower shall have delivered to the Lead Agent an
officer's certificate, dated the Release Date, confirming
the matters referred to in clause (ii) above, certifying
that the provisions of clause (iii) above have been complied
with and certifying that all conditions precedent for such
release contained in this Agreement have been complied
with;
41
Upon or concurrently with payment of all amounts required to be paid
pursuant to Section 2.9(b) and the satisfaction of all other conditions provided
for herein, the Lead Agent shall effectuate the following (hereinafter referred
to as a "Property Release"): the security interest of the Banks in the Mortgage
----------------
and other Loan Documents relating to the released Mortgaged Property shall be
released from the Lien of the Mortgage and the Lead Agent will execute and
deliver any agreements reasonably requested by the Borrower to release and
terminate or reassign, at the Borrower's option, the Mortgage as to the released
Mortgaged Property; provided, that such release and termination or reassignment
--------
shall be without recourse to the Lead Agent (except as contemplated hereby) and
without any representation or warranty except that the Lead Agent shall be
deemed to have represented that such release and termination or reassignment
has been duly authorized and that it has not assigned or encumbered the Mortgage
or the other Loan Documents relating to the released Mortgaged Property (except
as contemplated hereby) and the Lead Agent shall return the originals of any
Loan Documents that relate solely to the released Mortgaged Property to the
Borrower; provided, further, that upon the release and termination or
-------- -------
reassignment of the Lead Agent's security interest in the Mortgage relating to
the released Mortgaged Property all references herein to the Mortgage relating
to the released Mortgaged Property shall be deemed deleted, except as otherwise
provided herein with respect to indemnities .
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Agent and each of the other Banks which
may become a party to this Agreement to make the Loans, the Borrower makes the
following representations and warranties as of the date hereof. Such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.
SECTION 4.1. Existence and Power. The Borrower is duly organized,
-------------------
validly existing and in good standing as a limited partnership under the laws of
the State of Delaware and has all powers and all material
42
governmental licenses, authorizations, consents and approvals required to own
its property and assets and carry on its business as now conducted or as it
presently proposes to conduct and has been duly qualified and is in good
standing in every jurisdiction in which the failure to be so qualified and/or in
good standing is likely to have a Material Adverse Effect.
SECTION 4.2. Power and Authority. The Borrower has the corporate
-------------------
power and authority to execute, deliver and carry out the terms and provisions
of each of the Loan Documents to which it is a party and has taken all necessary
action to authorize the execution and delivery on behalf of the Borrower and the
performance by the Borrower of such Loan Documents. The Borrower has duly
executed and delivered each Loan Document to which it is a party, and each such
Loan Document constitutes the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, except as enforceability
may be limited by applicable insolvency, bankruptcy or other laws affecting
creditors rights generally, or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law.
SECTION 4.3. No Violation. Neither the execution, delivery or
------------
performance by or on behalf of the Borrower of the Loan Documents, nor
compliance by the Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by the Loan Documents, (i) will
contravene any applicable provision of any law, statute, rule, regulation,
order, writ, injunction or decree of any court or governmental instrumentality
applicable to Borrower or (ii) will conflict with or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower
pursuant to the terms of any material indenture, mortgage, deed of trust, or
other agreement or other instrument to which the Borrower (or of any partnership
of which the Borrower is a partner) is a party or by which it or any of its
property or assets is bound or to which it is subject or (iii) will cause a
default by the Borrower under any organizational document of any Subsidiary, or
cause a de-
43
fault under the Borrower's general partner's articles of incorporation or by-
laws.
SECTION 4.4. Financial Information.
---------------------
(a) The unaudited consolidated balance sheet of the Borrower as of
March 31, 1997, when delivered to Lead Agent shall fairly present, in conformity
with GAAP, the consolidated financial position of the Borrower as of such date
and its consolidated results of operations for such fiscal year.
(b) Since March 31, 1997, (i) there has been no material adverse
change in the business, financial position or results of operations of the
Borrower and (ii) except as previously disclosed to the Lead Agent, the Borrower
has not incurred any material indebtedness or guaranty.
SECTION 4.5. Litigation.
----------
(a) There is no action, suit or proceeding pending against, or to the
knowledge of the Borrower, threatened against or affecting, (i) the Borrower or
any of its Subsidiaries, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) any of their assets, in any case
before any court or arbitrator or any governmental body, agency or official
which could reasonably be expected to have a Material Adverse Effect or which
in any manner draws into question the validity of this Agreement or the other
Loan Documents.
(b) There are no final nonappealable judgments or decrees in an
aggregate amount of One Million Dollars ($1,000,000) or more entered by a court
or courts of competent jurisdiction against the Borrower (other than any
judgment as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing).
SECTION 4.6. Compliance with ERISA.
---------------------
(a) Except as previously disclosed to the Lead Agent in writing, each
member of the ERISA Group has fulfilled its obligations under the minimum
funding standards of ERISA and the Internal Revenue Code with respect
44
to each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code or (iii) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA.
(b) Except for each "employee benefit plan" (as such term is defined
in Section 3(3) of ERISA) that is maintained, or contributed to, by one or more
members of the ERISA Group, no member of the ERISA Group is a "party in
interest" (as such term is defined in Section 3(14) of ERISA or a "disqualified
person" (as such term is defined in Section 4975(e)(2) of the Code) with
respect to any funded employee benefit plan and none of the assets of any such
plans have been invested in a manner that would cause the transactions
contemplated by the Loan Documents to constitute a nonexempt prohibited
transaction (as such term is defined in Section 4975 of the Code or Section 406
of ERISA).
SECTION 4.7 Environmental Compliance. To the best of Borrower's
------------------------
knowledge, except as set forth in the Phase I environmental report(s) delivered
to and accepted by the Lead Agent with respect to each of the Mortgaged
Properties (as supplemented or amended, the "Environmental Reports"), (i) there
----------------------
are in effect all Environmental Approvals which are required to be obtained
under all Environmental Laws with respect to the Property, except for such
Environmental Approvals the absence of which would not have a Material Adverse
Effect, (ii) the Borrower is in compliance in all material respects with the
terms and conditions of all such Environmental Approvals, and is also in
compliance in all material respects with all other Environmental Laws or any
plan, order, decree, judgment, injunction, notice or demand letter issued,
entered or approved thereunder, except to the extent
45
failure to comply would not have a Material Adverse Effect.
Except as set forth in the Environmental Reports or otherwise
disclosed to the Lead Agent as of the Closing Date, to Borrower's actual
knowledge:
(i) There are no Environmental Claims or investigations pending
or threatened by any Governmental Authority with respect to any alleged
failure by the Borrower to have any Environmental Approval required in
connection with the conduct of the business of the Borrower on any of the
Mortgaged Properties, or with respect to any generation, treatment,
storage, recycling, transportation, Release or disposal of any Material of
Environmental Concern generated by the Borrower or any lessee on any of the
Mortgaged Properties;
(ii) No Material of Environmental Concern has been Released at
the Property to an extent that it may reasonably be expected to have a
Material Adverse Effect;
(iii) No PCB (in amounts or concentrations which exceed those
set by applicable Environmental Laws) is present at any of the Mortgaged
Properties;
(iv) No friable asbestos is present at any of the Mortgaged
Properties;
(v) There are no underground storage tanks for Material of
Environmental Concern, active or abandoned, at any of the Mortgaged
Properties;
(vi) No Environmental Claims have been filed with a Governmental
Authority with respect to any of the Mortgaged Properties, and none of the
Mortgaged Properties is listed or proposed for listing on the National
Priority List promulgated pursuant to CERCLA, on CERCLIS or on any similar
state list of sites requiring investigation or clean-up;
(vii) There are no Liens arising under or pursuant to any
Environmental Laws on any of the Mortgaged Properties, and no government
actions have
46
been taken or are in process which could subject any of the Mortgaged
Properties to such Liens; and
(viii) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by, or which are in the
possession of, the Borrower in relation to any of the Mortgaged Properties
which have not been made available to the Lead Agent.
SECTION 4.8. Taxes. The initial tax year of the Borrower for federal
-----
income tax purposes was 1996. The federal income tax returns of the Borrower
and its Consolidated Subsidiaries for the fiscal year ended December 31, 1996
have been filed. The Borrower and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any Subsidiary except
those being contested in good faith. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information heretofore furnished
---------------
by the Borrower to the Lead Agent or any Bank for purposes of or in connection
with this Agreement or any transaction contemplated hereby is true and accurate
in all material respects on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all facts
known to the Borrower which materially and adversely affect or are likely to
materially and adversely affect (to the extent the Borrower can now reasonably
foresee), the business, operations or financial condition of the Borrower
considered as one enterprise or the ability of the Borrower to perform its
obligations under this Agreement or the other Loan Documents.
SECTION 4.10. Solvency. On the Closing Date and after giving effect
--------
to the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower is Solvent.
SECTION 4.11. Use of Proceeds; Margin Regulations. All proceeds of
------------------------------------
the Loans will be used by the
47
Borrower only in accordance with the provisions hereof. No part of the proceeds
of any Loan will be used by the Borrower to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of Regulations G, T,
U or X of the Federal Reserve Board.
SECTION 4.12. Governmental Approvals. No order, consent, approval,
----------------------
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of any Loan Document or the
consummation of any of the transactions contemplated thereby other than those
that have already been duly made or obtained and remain in full force and
effect.
SECTION 4.13. Investment Company Act; Public Utility Holding Company
------------------------------------------------------
Act. The Borrower is not (x) an "investment company" or a company "controlled"
--- ------------------ ----------
by an "investment company", within the meaning of the Investment Company Act of
------------------
1940, as amended, (y) a "holding company" or a "subsidiary company" of a
--------------- ------------------
"holding company" or an "affiliate" of either a "holding company" or a
--------------- --------- ---------------
"subsidiary company" within the meaning of the Public Utility Holding Company
-------------------
Act of 1935, as amended, or (z) subject to any other federal or state law or
regulation which purports to restrict or regulate its ability to borrow money.
SECTION 4.14. Closing Date Transactions. On the Closing Date and
-------------------------
immediately prior to or concurrently with the making of the Loans, the
transactions (other than the making of the Loans) intended to be consummated on
the Closing Date will have been consummated in accordance with all applicable
laws. On or prior to the Closing Date, all consents and approvals of, and
filings and registrations with, and all other actions by, any Person required in
order to make or consummate such transactions have been obtained, given, filed
or taken and are in full force and effect.
SECTION 4.15. Representations and Warranties in Loan Documents. All
------------------------------------------------
representations and warranties
48
made by the Borrower in the Loan Documents are true and correct in all material
respects.
SECTION 4.16. Patents, Trademarks, etc. The Borrower has obtained
-------------------------
and holds in full force and effect all patents, trademarks, service marks, trade
names, copyrights and other such rights, free from burdensome restrictions,
which are necessary for the operation of its business as presently conducted,
the impairment of which is likely to have a Material Adverse Effect. To the
Borrower's knowledge, no material product, process, method, substance, part or
other material presently sold by or employed by the Borrower in connection with
such business infringes any patent, trademark, service ▇▇▇▇, trade name,
copyright, license or other such right owned by any other Person. There is not
pending or, to the Borrower's knowledge, threatened any claim or litigation
against or affecting the Borrower contesting its right to sell or use any such
product, process, method, substance, part or other material.
SECTION 4.17. No Default. No Default or Event of Default exists
----------
under or with respect to any Loan Document. The Borrower is not in default in
any material respect beyond any applicable grace period under or with respect
to any other material agreement, instrument or undertaking to which it is a
party or by which it or any of its property is bound in any respect, the
existence of which default is likely (to the extent that the Borrower can now
reasonably foresee) to result in a Material Adverse Effect.
SECTION 4.18. Licenses, etc. The Borrower has obtained and holds in
--------------
full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other consents and approvals which are necessary for the operation of its
businesses as presently conducted, the absence of which is likely (to the extent
that the Borrower can now reasonably foresee) to have a Material Adverse Effect.
SECTION 4.19. Compliance With Law. The Borrower is in compliance
-------------------
with all laws, rules, regulations, orders, judgments, writs and decrees,
including, without limitation, all building and zoning ordinances and codes, the
failure to comply with which is likely (to the extent
49
that the Borrower can now reasonably foresee) to have a Material Adverse Effect.
SECTION 4.20. No Burdensome Restrictions. The Borrower is not a
--------------------------
party to any agreement or instrument or subject to any other obligation or any
charter or corporate or partnership restriction, as the case may be, which,
individually or in the aggregate, is likely (to the extent that the Borrower can
now reasonably foresee) to have a Material Adverse Effect.
SECTION 4.21. Brokers' Fees. The Borrower has not dealt with any
-------------
broker or finder with respect to the transactions contemplated by the Loan
Documents (except with respect to the acquisition or disposition of Real
Property Assets) or otherwise in connection with this Agreement, and the
Borrower has not done any acts, had any negotiations or conversation, or made
any agreements or promises which will in any way create or give rise to any
obligation or liability for the payment by the Borrower of any brokerage fee,
charge, commission or other compensation to any party with respect to the
transactions contemplated by the Loan Documents (except with respect to the
acquisition or disposition of Real Property Assets), other than the fees payable
hereunder.
SECTION 4.22. Labor Matters. Except as set forth on Schedule 4.22
------------- -------------
attached hereto and made a part hereof, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower and
the Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five (5) years.
SECTION 4.23. Organizational Documents. The documents delivered
------------------------
pursuant to Section 3.1(d) constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the Borrower. The Borrower represents that it has delivered to the
Lead Agent true, correct and complete copies of each of the documents set forth
in this Section 4.23.
SECTION 4.24. Principal Offices. The principal office, chief
-----------------
executive office and principal place of business of the Borrower is ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
50
SECTION 4.25. REIT Status. For the fiscal year ended December 31,
-----------
1997, the general partner of the Borrower will qualify, and the general partner
of the Borrower intends to continue to qualify as a real estate investment trust
under the Code.
SECTION 4.26. Ownership of Property. The Borrower owns fee simple
---------------------
title to or a ground leasehold interest in each of the Mortgaged Properties.
SECTION 4.27 Security Interests and Liens. The Mortgages create, as
----------------------------
security for the Obligations, valid and enforceable security interests in and
Liens on all of the Collateral in favor of the Lead Agent as agent for the
ratable benefit of the Banks, and subject to no other Liens (except as may be
permitted under any Mortgage with respect to the Mortgaged Property subject
thereto), except as enforceability may be limited by applicable insolvency,
bankruptcy or other laws affecting creditors' rights generally, or general
principles of equity, whether such enforceability is considered in a proceeding
in equity or at law. Such security interests in and Liens on the Collateral
shall be superior to and prior to the rights of all third parties in the
Collateral (except as may be permitted under any Mortgage with respect to the
Mortgaged Property subject thereto), and, other than in connection with any
future change in Borrower's name or the location of Borrower's chief executive
office, no further recordings or filings are or will be required in connection
with the creation, perfection or enforcement of such security interests and
Liens, other than the filing of continuation statements in accordance with
applicable law.
SECTION 4.28 Structural Defects and Violation of Law. To the best of
---------------------------------------
Borrower's knowledge and except as set forth in the structural and engineering
report delivered to and accepted by the Lead Agent with respect to the
Mortgaged Properties (as supplemented or amended, the "Engineering Report"),
------------------
there are no structural defects any of the Improvements, none of the
Improvements is in material violation of any Requirements, and the Borrower's
anticipated use of the Improvements will comply in all material respects with
applicable zoning ordinances, regulations, and restrictive covenants affecting
the applicable Mortgaged Property.
51
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. The Borrower will deliver to the Lead
-----------
Agent and to each of the Banks:
(a) as soon as available and in any event within 105 days after the
end of each fiscal year of the Borrower, an audited consolidated balance sheet
of the Borrower as of the end of such fiscal year and the related consolidated
statements of cash flow and operations for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year, audited
by Delloite & Touche or other independent public accountants of similar
standing;
(b) as soon as available and in any event within sixty (60) days after
the end of each quarter of each fiscal year (other than the last quarter in any
fiscal year) of the Borrower, a statement of the Borrower, prepared in
accordance with GAAP, setting forth the operating income and operating expenses
of the Borrower, in sufficient detail so as to calculate net operating cash flow
of the Borrower for the immediately preceding quarter;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Section 5.8 on the date of
such financial statements;(ii) stating whether any Default exists on the date
of such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements fairly
present the financial condition and the results of operations of the Borrower
as of the dates and for the periods indicated, in accordance with GAAP, subject,
in the case of interim
52
financial statements, to normal year-end adjustments, and (y) that such officer
has reviewed the terms of the Loan Documents and has made, or caused to be made
under his or her supervision, a review in reasonable detail of the business and
condition of the Borrower during the period beginning on the date through which
the last such review was made pursuant to this Section 5.1(c) (or, in the case
of the first certification pursuant to this Section 5.1(c), the Closing Date)
and ending on a date not more than ten (10) Domestic Business Days prior to the
date of such delivery and that on the basis of such review of the Loan Documents
and the business and condition of the Borrower, to the best knowledge of such
officer, no Default or Event of Default under any other provision of Section 6.1
occurred or, if any such Default or Event of Default has occurred, specifying
the nature and extent thereof and, if continuing, the action the Borrower
proposes to take in respect thereof;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of a firm of independent
public accountants confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith pursuant to clause (c) above;
(e) (i) within five (5) days after the president, chief financial
officer, treasurer, controller or other executive officer of the Borrower
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer or the president of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto; (ii) promptly and in any event within ten
(10) days after the Borrower obtains knowledge thereof, notice of (x) any
litigation or governmental proceeding pending or threatened against the
Borrower which is likely to individually or in the aggregate, result in a
Material Adverse Effect, and (y) any other event, act or condition which is
likely to result in a Material Adverse Effect;
(f) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of
53
ERISA, or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA or notice
that any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Internal Revenue Code, a copy
of such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which
has resulted or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take;
(g) promptly and in any event within five (5) Domestic Business Days
after the Borrower obtains actual knowledge of any of the following events, a
certificate of the Borrower executed by an officer of the Borrower specifying
the nature of such condition and the Borrower's, if the Borrower has actual
knowledge thereof, the Environmental Affiliate's proposed initial response
thereto: (i) the receipt by the Borrower, or, if the Borrower has actual
knowledge thereof, any of the Environmental Affiliates, of any communication
(written or oral), whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Borrower, or, if the Borrower has
actual knowledge thereof, any of the Environmental Affiliates, is not in
compliance with applicable Environmental Laws, and such noncompliance is likely
to have a Material Adverse Effect, (ii) the Borrower shall obtain actual
knowledge
54
that there exists any Environmental Claim which is likely to have a Material
Adverse Effect pending or threatened against the Borrower or any Environmental
Affiliate or (iii) the Borrower obtains actual knowledge of any release,
emission, discharge or disposal of any Material of Environmental Concern that is
likely to form the basis of any Environmental Claim against the Borrower or any
Environmental Affiliate;
(h) promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any material loss or loss of the Borrower with respect to any of the Mortgaged
Properties, copies of such notices and correspondence; and
(i) promptly upon the mailing thereof to the shareholders or partners
of the Borrower, copies of all financial statements, reports and proxy statement
so mailed;
(j) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(k) simultaneously with delivery of the information required by
Sections 5.1(a) and (b), a statement of Net Operating Cash Flow with respect to
each Mortgaged Property and a list of all Mortgaged Properties; and
(l) from time to time such additional information regarding the
financial position or business of the Borrower as the Lead Agent, at the request
of any Bank, may reasonably request.
SECTION 5.2. Payment of Obligations. The Borrower will pay and
----------------------
discharge, at or before maturity, all its material obligations and liabilities
including, without limitation, any obligation pursuant to any agreement by which
it or any of its properties is bound and any tax liabilities, in any case, where
failure to do so will likely result in a Material Adverse Effect except (i) such
tax liabilities may be contested in good faith
55
by appropriate proceedings, and will maintain in accordance with GAAP,
appropriate reserves for the accrual of any of the same; or (ii) such obligation
or liability as may be contested in good faith by appropriate proceedings.
SECTION 5.3. Maintenance of Property; Insurance.
----------------------------------
(a) The Borrower will keep each of the Mortgaged Properties in good
repair, working order and condition, subject to ordinary wear and tear and in
accordance with the provisions of the applicable Mortgage.
(b) The Borrower shall (a) maintain insurance as specified in Section
5 of the Mortgage with insurers meeting the qualifications described therein,
which insurance shall in any event not provide for materially less coverage than
the insurance in effect on the Closing Date, and (b) furnish to each Bank from
time to time, upon written request, copies of the policies under which such
insurance is issued, certificates of insurance and such other information
relating to such insurance as such Bank may reasonably request. The Borrower
will deliver to the Banks (i) upon request of any Bank through the Lead Agent
from time to time, full information as to the insurance carried, (ii) within
five (5) days of receipt of notice from any insurer, a copy of any notice of
cancellation or material change in coverage from that existing on the date of
this Agreement and (iii) forthwith, notice of any cancellation or nonrenewal of
coverage by the Borrower.
SECTION 5.4. Conduct of Business. The Borrower will continue to
-------------------
engage in business of the same general type as now conducted by it.
SECTION 5.5. Compliance with Laws. The Borrower will comply in all
--------------------
material respects with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including, without limitation,
Environmental Laws, all zoning and building codes and ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
56
SECTION 5.6. Inspection of Property, Books and Records. The Borrower
-----------------------------------------
will keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities; and will permit representatives of any Bank at such
Bank's expense to visit and inspect any of its properties to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers and employees, all at such reasonable times, upon
reasonable notice, and as often as may reasonably be desired.
SECTION 5.7. Existence.
---------
(a) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence or its
partnership existence, as applicable.
(b) The Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its patents, trademarks,
servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals the nonexistence of which is
likely to have a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
-------------------
(a) Debt Service Coverage. Measured as of the last day of each
---------------------
calendar quarter, the ratio of (i) Net Operating Cash Flow to (ii) Debt Service
will not be less than 1.75:1.
(b) LTV Ratio. As of the last day of each calendar quarter and as of
---------
the date of any addition of a Mortgaged Property, the LTV Ratio shall not exceed
60%, subject, however, to the Borrower's rights to cure pursuant to Section
2.9(a). Failure to restore compliance with this Section 5.8(b) in accordance
with Section 2.9(a) shall be an immediate Event of Default.
(c) Maximum Total Debt to Tangible FMV. As of the last day of each
----------------------------------
calendar quarter, the Maximum Total Debt Ratio will not be greater than 50%
during the then current calendar year.
57
(d) EBITDA Coverage. As of the last day of each calendar quarter, the
---------------
ratio of Annual EBITDA to Total Debt Service will not be less than 2.0:1.
(e) Dividends. The Borrower will not, as determined on an aggregate
---------
annual basis, pay any dividends in excess of the greater of (i) 95% of its
consolidated FFO for such year, and (ii) an amount which results in
distributions to the general partner of the Borrower in an amount sufficient to
permit such general partner to make distributions to its shareholders which it
reasonably believes are necessary for it to (A) maintain its qualification as a
real estate investment trust for federal and state income tax purposes, and (B)
avoid the payment of federal or state income or excise tax. During the
continuance of an Event of Default under Section 6.1(a), the Borrower shall pay
only those dividends necessary to make distributions to the general partner of
the Borrower to make distributions to its shareholders which it reasonably
believes are necessary to maintain its status as a real estate investment trust
for federal and state income tax purposes.
(f) Minimum Consolidated Tangible Net Worth. The Consolidated
---------------------------------------
Tangible Net Worth will at no time be less than 90% of the Consolidated Tangible
Net Worth on January 28, 1997.
(g) Negative Pledge. The Borrower will not create, assume or suffer
---------------
to exist any Lien on any Mortgaged Property now owned or hereafter acquired by
it, except for any encumbrances created or permitted by the Loan Documents.
(h) Project Indebtedness. The Borrower shall not, at any time,
--------------------
create, incur, assume, guaranty, suffer to exist or otherwise become or remain
directly or indirectly liable with respect to any Debt other than Non-Recourse
Debt. Notwithstanding the provisions of the sentence immediately foregoing, the
Borrower shall have the right to incur Recourse Debt up to an aggregate maximum
of $5,000,000 which is either (i) unsecured or (ii) incurred with respect to
assets which are not Mortgaged Properties and is subject to a purchase money
security interest or security interest under a conditional sale agreement.
58
SECTION 5.9. Restriction on Fundamental Changes; Operation and
-------------------------------------------------
Control. (a) The Borrower shall not enter into any merger or consolidation,
-------
unless the Borrower is the surviving entity, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), discontinue its business or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, any substantial part of its business or property, whether now or
hereafter acquired, hold an interest in any subsidiary which is not controlled
by the Borrower or enter into other business lines, without the prior written
consent of the Lead Agent.
(b) The Borrower shall not amend its articles of incorporation, by-
laws or agreement of limited partnership, as applicable, in any material
respect, without the Lead Agent's consent, which shall not be unreasonably
withheld or delayed.
SECTION 5.10. Changes in Business. The Borrower shall not enter
-------------------
into any business which is substantially different from that conducted by the
Borrower on the Closing Date after giving effect to the transactions
contemplated by the Loan Documents.
SECTION 5.11 Sale of the Property. Except as provided in Section
--------------------
3.4(c) and in the Loan Documents, the Borrower shall not sell or otherwise
transfer its interest in all or any part of the Mortgaged Properties; provided,
--------
however, that nothing in this Section 5.11 shall be deemed to prohibit the
-------
leasing of portions of the Mortgaged Properties in the ordinary course of
business for occupancy by the tenants thereunder.
SECTION 5.12. Fiscal Year; Fiscal Quarter. The Borrower shall not
---------------------------
change its fiscal year or any of its fiscal quarters without the Lead Agent's
consent, which shall not be unreasonably withheld or delayed.
SECTION 5.13. Margin Stock. None of the proceeds of the Loan will be
------------
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any Margin Stock.
SECTION 5.14. Development Activities. The Borrower shall not engage
----------------------
in any development activities except for development in connection with the
expansion
59
and/or repositioning or restoration following a casualty or condemnation of
existing improvements on Real Property Assets. Notwithstanding the foregoing,
the Borrower may engage in all other development activities where there is
construction completion risk provided that in no event shall the value
(determined in accordance with the definition of Combined Asset Value) of the
Real Property Assets under such other type of development exceed twenty percent
(20%) of the Borrower's Combined Asset Value.
SECTION 5.15. Use of Proceeds. The Borrower shall use the proceeds
---------------
of the Loans solely to refinance the Mortgaged Properties as of the date hereof,
to finance the acquisition of additional Mortgaged Properties which are
industrial or office properties and for its general business purposes.
SECTION 5.16 Borrower Status. The general partner of the Borrower
---------------
shall at all times (i) maintain its status as a self-directed and self-
administered real estate investment trust under the Code, and (ii) remain a
publicly traded company listed on the New York Stock Exchange.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the following
-----------------
events ("Events of Default") shall have occurred and be continuing:
-----------------
(a) the Borrower shall fail to pay when due any principal of any Loan,
or the Borrower shall fail to pay when due any interest on any Loan; provided,
--------
however, that the Borrower shall be entitled to a three (3) Domestic Business
-------
Day grace period with respect thereto but only as to two (2) payments of
interest during the Term, or the Borrower shall fail to pay within three (3)
Domestic Business Days after the same is due any fees or other amounts payable
hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.8(a)-(g) and
60
Sections 5.8 to 5.16, inclusive, subject to any applicable grace periods set
forth therein;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a)
or (b) above) for 30 days after written notice thereof has been given to the
Borrower by the Lead Agent;
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Borrower shall default in the payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise) of
any amount owing in respect of any Recourse Debt or Debt guaranteed by the
Borrower (other than the Obligations) and such default shall continue beyond the
giving of any required notice and the expiration of any applicable grace period
(as the same may be extended by the applicable lender) and such default shall
not be waived by the applicable lender (which waiver shall serve to reinstate
the applicable loan), or the Borrower shall default in the performance or
observance of any obligation or condition with respect to any such Debt or any
other event shall occur or condition exist beyond the giving of any required
notice and the expiration of any applicable grace period (as the same may be
extended by the applicable lender), if in any such case as a result of such
default, event or condition, the lender thereof shall accelerate the maturity of
any such Debt or to permit (without any further requirement of notice or lapse
of time) the holder or holders thereof, or any trustee or agent for such
holders, to accelerate the maturity of any such Debt and such default shall not
be waived by the applicable lender (which waiver shall serve to reinstate the
applicable loan), or any such Debt shall become or be declared to be due and
payable prior to its stated maturity other than as a result of a regularly
scheduled payment;
(f) the Borrower shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its
61
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced against
the Borrower seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Borrower under the federal bankruptcy laws as now or
hereafter in effect;
(h) the Borrower shall default in its obligations under any Loan
Document other than this Agreement beyond any applicable notice and grace
periods;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 which it shall have become liable
to pay under Title IV of ERISA, or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to
cause a trustee to be appointed to administer any Material Plan, or a condition
shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated, or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group
62
to incur a current payment obligation in excess of $1,000,000;
(j) one or more final nonappealable judgments or decrees in an
aggregate amount of $10,000,000 as of such date shall be entered by a court or
courts of competent jurisdiction against the Borrower (other than any judgment
as to which, and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing) and (i) any such judgments or
decrees shall not be stayed, discharged, paid, bonded or vacated within thirty
(30) days (or bonded, vacated or satisfied within thirty (30) after any stay is
lifted) or (ii) enforcement proceedings shall be commenced by any creditor on
any such judgments or decrees;
(k) (i) any Environmental Claim shall have been asserted against the
Borrower or any Environmental Affiliate, (ii) any release, emission, discharge
or disposal of any Material of Environmental Concern shall have occurred, and
such event is reasonably likely to form the basis of an Environmental Claim
against the Borrower or any Environmental Affiliate, or (iii) the Borrower or
the Environmental Affiliates shall have failed to obtain any Environmental
Approval necessary for the ownership, or operation of its business, property or
assets or any such Environmental Approval shall be revoked, terminated, or
otherwise cease to be in full force and effect, in the case of clauses (i), (ii)
or (iii) above, if the existence of such condition has had or is reasonably
likely to have a Material Adverse Effect;
(l) during any consecutive two year period commencing on or after the
date hereof, individuals who at the beginning of such period constituted the
Board of Directors of the Borrower (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
Borrower stockholders was approved by a vote of at least a majority of the
members of the Board of Directors then in the office who either were members of
the Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office;
63
(m) the general partner of the Borrower shall cease at any time to
qualify as a real estate investment trust under the Internal Revenue Code;
(n) at any time, for any reason the Borrower seeks to repudiate its
obligations under any Loan Document;
(o) any Mortgage or any Lien granted thereunder shall (except in
accordance with the terms hereof or thereof), in whole or in part, terminate,
cease to be effective or cease to be a legally valid, binding and enforceable
obligation of the Borrower, or any Lien securing the Loans shall, in whole or in
part, cease to be a perfected first priority Lien, subject to the Permitted
Exceptions (as defined in the Mortgages).
SECTION 6.2. Rights and Remedies. (a) Upon the occurrence of any
-------------------
Event of Default described in Sections 6.1(f) or (g), the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all
accrued fees and other Obligations hereunder shall automatically become
immediately due and payable, with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower; and upon the occurrence and during the continuance of any other Event
of Default, the Lead Agent may exercise any of its rights and remedies hereunder
and by written notice to the Borrower, declare the unpaid principal amount of
and any and all accrued and unpaid interest on the Loans and any and all accrued
fees and other Obligations hereunder to be, and the same shall thereupon be,
immediately due and payable with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind other than as provided in the Loan Documents
(including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrower.
(b) Notwithstanding the foregoing, upon the occurrence and during the
continuance of any Event of De-
64
fault other than any Event of Default described in Sections 6.1(f) or (g), the
Lead Agent shall not exercise any of its rights and remedies hereunder nor
declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Loans and any and all accrued fees and other Obligations
hereunder to be immediately due and payable, until such time as the Lead Agent
shall have delivered a notice to the Banks specifying the Event of Default which
has occurred and whether Lead Agent recommends the acceleration of the
Obligations due hereunder or the exercise of other remedies hereunder. The
Banks shall notify the Lead Agent if they approve or disapprove of the
acceleration of the Obligations due hereunder or the exercise of such other
remedy recommended by Lead Agent within five (5) Domestic Business Days after
receipt of such notice. If any Bank shall not respond within such five (5)
Domestic Business Day period, then such Bank shall be deemed to have accepted
Lead Agent's recommendation for acceleration of the Obligations due hereunder or
the exercise of such other remedy. If the Required Banks shall approve the
acceleration of the Obligations due hereunder or the exercise of such other
remedy, then Lead Agent shall declare the unpaid principal amount of and any
and all accrued and unpaid interest on the Loans and any and all accrued fees
and other Obligations hereunder to be immediately due and payable or exercise
such other remedy approved by the Required Banks. If the Required Banks shall
neither approve nor disapprove the acceleration of the Obligations due
hereunder or such other remedy recommended by Lead Agent, then Lead Agent may
accelerate the Obligations due hereunder or exercise any of its rights and
remedies hereunder in its sole discretion. If the Required Banks shall
disapprove the acceleration of the Obligations due hereunder or the exercise of
such other remedy recommended by Lead Agent, but approve of another remedy, then
to the extent permitted hereunder, Lead Agent shall exercise such remedy.
SECTION 6.3. Notice of Default. If the Lead Agent shall not already
-----------------
have given any notice to the Borrower under Section 6.1, the Lead Agent shall
give notice to the Borrower under Section 6.1 promptly upon being requested to
do so by the Required Banks and shall thereupon notify all the Banks thereof.
65
ARTICLE VII
THE LEAD AGENT
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Lead Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Lead Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
SECTION 7.2. Lead Agent and Affiliates. ▇▇▇▇▇▇ shall have the same
-------------------------
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Lead Agent, and
▇▇▇▇▇▇ and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any subsidiary or affiliate
of the Borrower as if it were not the Lead Agent hereunder, and the term "Bank"
and "Banks" shall include ▇▇▇▇▇▇ in its individual capacity.
SECTION 7.3. Action by Lead Agent. The obligations of the Lead
--------------------
Agent hereunder are only those expressly set forth herein. Without limiting
the generality of the foregoing, the Lead Agent shall not be required to take
any action with respect to any Default, except as expressly provided in Article
VI.
SECTION 7.4. Consultation with Experts. The Lead Agent may consult
-------------------------
with legal counsel (who may be counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Lead Agent. Neither the Lead Agent nor any
-----------------------
of its affiliates nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Banks or, where
required by the terms of this Agreement, all of the Banks, or (ii) in the
absence of its own gross negligence or willful misconduct. Neither the Lead
Agent nor any of its directors,
66
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower;
(iii) the satisfaction of any condition specified in Article III, except receipt
of items required to be delivered to the Lead Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the other Loan Documents or any
other instrument or writing furnished in connection herewith. The Lead Agent
shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex or
similar writing) believed by it in good faith to be genuine or to be signed by
the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
---------------
with its Commitment, indemnify the Lead Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement, the other
Loan Documents or any action taken or omitted by such indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Lead Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Lead
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 7.8. Successor Lead Agent. The Lead Agent may resign at any
--------------------
time by giving notice thereof to the Banks and the Borrower. Upon any such
resignation or the removal of the Lead Agent in accordance with Section 7.11,
the Required Banks shall have the right to appoint
67
a successor Lead Agent with the consent of the Borrower provided that no Event
of Default shall have occurred and be continuing. If no successor Lead Agent
shall have been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Lead Agent gives notice of
resignation, then the retiring Lead Agent may, on behalf of the Banks, appoint a
successor Lead Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as the Lead Agent hereunder by a successor Lead
Agent, such successor Lead Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Lead Agent, and the retiring Lead
Agent shall be discharged from its duties and obligations hereunder first
accruing or arising after the effective date of such retirement. After any
retiring Lead Agent's resignation hereunder as Lead Agent, the provisions of
this Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Lead Agent.
SECTION 7.9. Lead Agent's Fee. The Borrower shall pay to the Lead
----------------
Agent for its own account fees in the amounts and at the times previously agreed
upon between the Borrower and the Lead Agent.
SECTION 7.10. Copies of Notices. Lead Agent shall deliver to each
-----------------
Bank a copy of any notice sent to the Borrower by Lead Agent in connection with
the performance of its duties as Lead Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Euro-
------
Dollar Borrowing:
(a) the Lead Agent is advised by the Reference Bank that deposits in
dollars (in the applicable amounts) are not being offered to the Reference Bank
in the relevant market for such Interest Period, or
68
(b) Banks having 50% or more of the aggregate amount of the
Commitments advise the Lead Agent that the Adjusted London Interbank Offered
Rate as determined by the Lead Agent will not adequately and fairly reflect the
cost to such Banks of funding their Euro-Dollar Loans for such Interest Period,
the Lead Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Lead Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligations of
the Banks to make Euro-Dollar Loans shall be suspended. Unless the Borrower
notifies the Lead Agent at least two Domestic Business Days before the date of
any Euro-Dollar Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, such Borrowing shall instead be
made as a Base Rate Borrowing.
SECTION 8.2. Illegality. If, after the date of this Agreement, the
----------
adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain or
fund its Euro-Dollar Loans, and such Bank shall so notify the Lead Agent, the
Lead Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Lead Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Lead Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it
may not lawfully continue to maintain and fund any of its outstanding Euro-
Dollar Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Euro-Dollar Loan, together with accrued inter-
69
est thereon. Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Banks), and such Bank shall make such
a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable law,
rule or regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Euro-Dollar Loans, its Note,
or its obligation to make Euro-Dollar Loans, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Lead Agent), which demand shall be accompanied by
a certificate showing, in reasonable detail, the calculation of such amount or
amounts, the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost or reduction.
70
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Bank (or its Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Lead Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank (or its Parent) for such
reduction.
(c) Each Bank will promptly notify the Borrower and the Lead Agent of
any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
SECTION 8.4. Taxes.
-----
(a) Any and all payments by the Borrower to or for the account of any
Bank or the Lead Agent hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charg-
71
es or withholdings, and all liabilities with respect thereto, excluding, in the
---------
case of each Bank and the Lead Agent, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Bank or
the Lead Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Bank, taxes imposed on its income, and
franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (and, if
different from the jurisdiction of such Bank's Applicable Lending Office, the
jurisdiction of the domicile of its Loans either established by the Bank
pursuant to Section 9.12 or determined by the applicable taxing authorities)(all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
-----
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or participation therein to any Bank or
the Lead Agent, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 8.4) such Bank or the Lead Agent (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Lead Agent, at its address referred to in Section
9.1, the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
participation therein or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or participation therein (hereinafter
referred to as "Other Taxes").
-----------
(c) The Borrower agrees to indemnify each Bank and the Lead Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 8.4) paid by such Bank or the
72
Lead Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. Any payment
required under this indemnification shall be made within 15 days from the date
such Bank or the Lead Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first became a
party to this Agreement or at any time thereafter (other than solely by reason
of a change in United States law or a change in the terms of any treaty to which
the United States is a party after the date hereof) indicates a United States
interest withholding tax rate in excess of zero (or would have indicated such a
withholding tax rate if such form had been submitted and completed accurately
and completely and either was not submitted or was not completed accurately and
completely), or if a Bank otherwise is subject to United States interest
withholding tax at a rate in excess of zero at any time for any reason (other
than solely by reason of a change in United States law or regulation or a change
in any treaty to which the United States is a party after the date hereof),
withholding tax at such rate shall be considered excluded from "Taxes" as
defined in Section 8.4(a). In addition, any amount that otherwise would be
considered "Taxes" or "Other Taxes" for purposes of this Section 8.4 shall be
excluded therefrom if the Bank either has transferred the domicile of its Loans
pursuant to Section 9.12 or changed the Applicable Lending Office with respect
to such Loans and such amount
73
would not have been incurred had such transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.4(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
-------- -------
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.4, then such Bank will change
the jurisdiction of its Applicable Lending Office so as to eliminate or reduce
any such additional payment which may thereafter accrue if such change, in the
judgment of such Bank, is not otherwise disadvantageous to such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar
----------------------------------------------------
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans has been
-----
suspended pursuant to Sections 8.1 or 8.2 or (ii) any Bank has demanded
compensation under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and
the Borrower shall, by at least five Euro-Dollar Business Days' prior notice to
such Bank through the Lead Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as Euro-
Dollar Loans shall be made instead as Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would other-
74
wise be applied to repay such Euro-Dollar Loans shall be applied to repay its
Base Rate Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other communications
-------
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission or similar writing) and shall be given to such party:
(x) in the case of the Borrower or the Lead Agent, at its address or telecopy
number set forth on the signature pages hereof, together with copies thereof, in
the case of the Borrower, to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Telephone: (213)
▇▇▇-▇▇▇▇, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, and in the case of the Lead Agent, to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq., Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇, (y) in the case of any Bank, at its address or telecopy number
set forth on the signature pages hereof or in its Administrative Questionnaire
or (z) in the case of any party, such other address or telecopy number as such
party may hereafter specify for the purpose by notice to the Lead Agent, the
Banks and the Borrower. Each such notice, request or other communication shall
be effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Lead Agent
--------
under Article II or Article VIII shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Lead Agent or
----------
any Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
75
SECTION 9.3. Expenses; Indemnification.
-------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Lead Agent (including, without limitation, reasonable fees and
disbursements of special counsel Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, local
counsel for the Lead Agent, and travel, site visits, third party reports
(including Appraisals), mortgage recording taxes, environmental and engineering
expenses), in connection with the preparation and administration of this
Agreement, the Loan Documents and the documents and instruments referred to
therein, the syndication of the Loans, any waiver or consent hereunder or any
amendment or modification hereof or any Default or alleged Default hereunder and
(ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the
Lead Agent and each Bank, including, without limitation, reasonable fees and
disbursements of counsel for the Lead Agent, in connection with the enforcement
of the Loan Documents and the instruments referred to therein and such Event of
Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Lead Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
----------
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel and settlements and settlement costs, which may be
incurred by such Indemnitee in connection with any investigative,
administrative or judicial proceeding (whether or not such Indemnitee shall be
designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed
on, asserted against or incurred by any Indemnitee as a result of, or arising
out of, or in any way related to or by reason of, (i) any of the transactions
contemplated by the Loan Documents or the execution, delivery or performance of
any Loan Document (including, without limitation, the Borrower's actual or
proposed use of proceeds of the Loans, whether or not in compliance with the
provisions hereof), (ii) any violation by the Borrower or the Environmental
Affiliates of any applicable Environmental Law, (iii) any Environmental Claim
arising out of the management, use,
76
control, ownership or operation of property or assets by the Borrower or any of
the Environmental Affiliates, including, without limitation, all on-site and
off-site activities involving Material of Environmental Concern, (iv) the breach
of any environmental representation or warranty set forth herein, (v) the grant
to the Lead Agent and the Banks of any Lien in any property or assets of the
Borrower or any stock or other equity interest in the Borrower, and (vi) the
exercise by the Lead Agent and the Banks of their rights and remedies
(including, without limitation, foreclosure) under any agreements creating any
such Lien (but excluding, as to any Indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements incurred solely by reason of (i) the gross negligence or
willful misconduct of such Indemnitee as finally determined by a court of
competent jurisdiction or (ii) any investigative, administrative or judicial
proceeding imposed or asserted against any Indemnitee by any bank regulatory
agency or by any equity holder of such Indemnitee). The Borrower's obligations
under this Section shall survive the termination of this Agreement and the
payment of the Obligations.
(c) The Borrower shall pay, and hold the Lead Agent and each of the
Banks harmless from and against, any and all present and future U.S. stamp,
recording, transfer and other similar foreclosure related taxes with respect to
the foregoing matters and hold the Lead Agent and each Bank harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Bank) to pay such taxes.
SECTION 9.4. Sharing of Set-Offs. In addition to any rights now or
-------------------
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance
of any Event of Default, each Bank is hereby authorized at any time or from
time to time, without presentment, demand, protest or other notice of any kind
to the Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), other than deposits held for the
benefit of third parties, and any other indebtedness at any time held or owing
by such Bank (in-
77
cluding, without limitation, by branches and agencies of such Bank wherever
located) to or for the credit or the account of the Borrower against and on
account of the Obligations of the Borrower then due and payable to such Bank
under this Agreement or under any of the other Loan Documents, including,
without limitation, all interests in Obligations purchased by such Bank. Each
Bank agrees that if it shall, by exercising any right of set-off or counterclaim
or otherwise, receive payment of a proportion of the aggregate amount of
principal and interest due with respect to any Note held by it which is greater
than the proportion received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to any Note held by such other
Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
--------
the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under the Notes. The
Borrower agrees, to the fullest extent that it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-off
or counter-claim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.5. Amendments and Waivers. Any provision of this
----------------------
Agreement, the Notes or other Loan Documents may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Borrower
and the Required Banks (and, if the rights or duties of the Lead Agent are
affected thereby, by the Lead Agent); provided that no such amendment or waiver
--------
shall, unless signed by all the Banks, (i) increase or decrease the Commitment
of any Bank (except for a ratable decrease in the Commitments of all Banks) or
subject any Bank to any additional obligation, (ii) reduce the principal of or
rate of interest on any Loan or any fees specified herein, (iii) postpone the
date fixed for any
78
payment of principal of or interest on any Loan or any fees hereunder or for any
reduction or termination of any Commitment, (iv) release the Lien of any
Mortgage or otherwise release any other collateral, or (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement.
SECTION 9.6. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
their rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
-----------
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Lead Agent, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Lead Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. Any agreement pursuant
to which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
--------
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii) or (iv) of Section 9.5 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits of
Article VIII with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agree-
79
ment only to the extent of a participating interest granted in accordance with
this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
--------
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit C
---------
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Lead Agent and, provided no Event of
Default shall have occurred and be continuing, the Borrower, which consent
shall not be unreasonably withheld or delayed. Upon execution and delivery of
such instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Lead Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note or
Notes are issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Lead Agent an administrative fee for
processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Lead Agent certification as to
exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.4.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive
80
any greater payment under Section 8.3 or 8.4 than such Bank would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Borrower's prior written consent or by reason of the provisions
of Section 8.2, 8.3 or 8.4 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
SECTION 9.7. Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement or
any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-
exclusive jurisdiction of the aforesaid courts and appellate courts from any
thereof. The Borrower irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the hand
delivery, or mailing of copies thereof by registered or certified mail, postage
prepaid, to the Borrower at its address set forth below. The Borrower hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement or any other Loan Document brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Lead Agent, any Bank or any holder of a Note to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
81
SECTION 9.8. Marshaling; Recapture. Neither the Lead Agent nor any
---------------------
Bank shall be under any obligation to marshal any assets in favor of the
Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Bank receives any payment by or on behalf of the
Borrower, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Obligation or part thereof
which has been paid, reduced or satisfied by the amount so repaid shall be
reinstated by the amount so repaid and shall be included within the liabilities
of the Borrower to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
SECTION 9.9. Counterparts; Integration; Effectiveness. This
-----------------------------------------
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Lead Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Lead Agent in form satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LEAD
--------------------
AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Survival. All indemnities set forth herein shall
--------
survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
82
SECTION 9.12. Domicile of Loans. Subject to the provisions of
-----------------
Article VIII, each Bank may transfer and carry its Loans at, to or for the
account of any domestic or foreign branch office, subsidiary or affiliate of
such Bank.
SECTION 9.13. Limitation of Liability. No claim may be made by the
-----------------------
Borrower or any other Person against the Lead Agent or any Bank or the
affiliates, directors, officers, employees, attorneys or agent of any of them
for any consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement or by the other Loan Documents, or
any act, omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to ▇▇▇ upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
▇▇▇▇▇▇ REALTY, L.P., a Delaware
limited partnership
By: ▇▇▇▇▇▇ Realty Corporation,
a Maryland Corporation
By:_________________________
Name:
Title:
Commitments
$150,000,000.00 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By:_____________________________
Name:
Title:
Total Commitments
-----------------
$150,000,000.00
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By:__________________________
Name:
Title:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic and Euro-Currency
Lending Office:
Nassau, Bahamas Office
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
84
EXHIBIT A
---------
NOTE
$150,000,000.00 New York, New York
May __, 1997
For value received, ▇▇▇▇▇▇ REALTY, L.P. a Delaware limited partnership
(the "Borrower") promises to pay to the order of ▇▇▇▇▇▇ Guaranty Trust Company
--------
of New York (the "Bank"), for the account of its Applicable Lending Office, the
----
unpaid principal amount of each Loan made by the Bank to the Borrower pursuant
to the Credit Agreement referred to below on the Maturity Date. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Lead
Agent under the Credit Agreement (as defined below).
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Revolving Credit
Agreement, dated as of May __, 1997, among the Borrower, the Banks parties
thereto, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead Agent (as the
same may be amended from time to time, the "Credit Agreement"). Terms defined
----------------
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
▇▇▇▇▇▇ REALTY, L.P., a Delaware
limited partnership
By: ▇▇▇▇▇▇ Realty Corporation,
a Maryland Corporation
By:______________________________
Name:
Title:
A-1
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
_______________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
______________________________________________________________
______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
A-2
EXHIBIT B
---------
MORTGAGED PROPERTIES
1) City of Long Beach Airport Phase I (Parcels 1 & 2), Los Angeles County,
California ("Phase I")
-------
2) City of Long Beach Airport Phase II (Parcels 5 & 6), Los Angeles County,
California ("Phase II")
--------
B-1
EXHIBIT C
---------
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION AGREEMENT
-----------------------------------
AGREEMENT dated as of __________, 199_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), ▇▇▇▇▇▇ REALTY, L.P. (the "Borrower")
and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Lead Agent (the "Agent").
W I T N E S S E T H
-------------------
WHEREAS, this Assignment and Assumption Agreement (the "Assignment")
relates to the Revolving Credit Agreement dated as of ________ ___, 199_ (the
"Loan Agreement") among the Borrower, the Assignor and the other Banks party
thereto, as Banks, and the Agent;
WHEREAS, as provided under the Loan Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the Loan
Agreement in the aggregate principal amount of $____________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Loan Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Loans, and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Loan Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Loan Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Loan Agreement to the extent of the Assigned Amount, including the purchase from
the Assignor of the corresponding portion of the principal amount of the Loans
made by the Assignor outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower and the Agent and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank
C-1
under the Loan Agreement with a Commitment in an amount equal to the Assigned
Amount, and (ii) the Commitment of the Assignor shall, as of the date hereof, be
reduced by a like amount and the Assignor released from its obligations under
the Loan Agreement to the extent such obligations have been assumed by the
Assignee. The assignment provided for herein shall be without recourse to the
Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them./1/ It
is understood that Commitment Fees accrued to the date hereof are for the
account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Loan Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
SECTION 4. Consent of the Borrower and the Agent. This Agreement is
-------------------------------------
conditioned upon the written consent of the Borrower and the consent of the
Agent pursuant to section 9.6(c) of the Loan Agreement. The execution of this
Agreement by the Borrower and the Agent is evidence of the required consents.
Pursuant to Section 9.6(c) the Borrower agrees to execute and deliver a Note
payable to the order of the Assignee to evidence the assignment and assumption
provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
------------------------
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Loan Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the external laws of the State of New York.
---------------------
/1/ The amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts
generically or by formula rather than as a fixed sum.
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SECTION 7. Counterparts. This Agreement may be signed in any number
------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:_______________________
Name:
Title:
[ASSIGNEE]
By:________________________
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By:________________________
Name:
Title:
CONSENTED TO:
▇▇▇▇▇▇ REALTY, L.P.
By: ▇▇▇▇▇▇ Realty Corporation
By: _____________________
Name:
Title:
C-3
EXHIBIT D
---------
ALLOCATED MORTGAGED PROPERTY LOAN AMOUNTS
Phase I $ 14,400,000.00
Phase II $ 29,400,000.00
D-1
SCHEDULE 4.22
-------------
LABOR MATTERS
Agreement between Building Owners and Managers Association of Greater Los
Angeles, Inc., and International Union of Operating Engineers, Local No. 501,
AFL-CIO (November 1, 1996-October 31, 2001)
4.22-1