[Execution Version]
-------------------------------------------------------------------------------
TERM LOAN CREDIT AGREEMENT (2007)
among
BRANDYWINE REALTY TRUST
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
as Borrowers
and
CERTAIN SUBSIDIARIES OF THE BORROWERS,
as Guarantors
and
THE LENDERS IDENTIFIED HEREIN
and
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.,
as Administrative Agent
and
JPMORGAN CHASE BANK,
as Syndication Agent
Dated as of September 17, 2004
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
-------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS...........................................................1
1.1. Definitions....................................................................................1
1.2. Computation of Time Periods and Other Definition Provisions...................................22
1.3. Accounting Terms..............................................................................22
1.4. Joint Venture Investments.....................................................................22
SECTION 2 CREDIT FACILITY...........................................................................23
2.1. Term Loans....................................................................................23
2.2. Joint and Several Liability of the Borrowers..................................................25
2.3. Appointment of BOP............................................................................26
2.4. Non-Recourse..................................................................................27
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS....................................................27
3.1. Interest......................................................................................27
3.2. Place and Manner of Payments..................................................................27
3.3. Payments......................................................................................28
3.4. Fees..........................................................................................29
3.5. Payment in Full at Maturity...................................................................29
3.6. Computations of Interest and Fees.............................................................29
3.7. Pro Rata Treatment............................................................................30
3.8. Capital Adequacy..............................................................................31
3.9. Inability To Determine Interest Rate..........................................................31
3.10. Illegality....................................................................................32
3.11. Requirements of Law...........................................................................32
3.12. Taxes.........................................................................................33
3.13. Compensation..................................................................................35
3.14. Mitigation; Mandatory Assignment..............................................................36
SECTION 4 GUARANTY..................................................................................36
4.1. Guaranty of Payment...........................................................................36
4.2. Obligations Unconditional.....................................................................36
4.3. Modifications.................................................................................37
4.4. Waiver of Rights..............................................................................38
-i-
TABLE OF CONTENTS
(continued)
PAGE
4.5. Reinstatement.................................................................................38
4.6. Remedies......................................................................................38
4.7. Limitation of Guaranty........................................................................38
4.8. Rights of Contribution........................................................................39
SECTION 5 CONDITIONS PRECEDENT......................................................................39
5.1. Closing Conditions............................................................................39
SECTION 6 REPRESENTATIONS AND WARRANTIES............................................................43
6.1. Financial Condition...........................................................................43
6.2. Absence of any Undisclosed Liabilities........................................................43
6.3. No Material Change............................................................................43
6.4. Organization and Good Standing................................................................44
6.5. Due Authorization.............................................................................44
6.6. No Conflicts..................................................................................44
6.7. Consents......................................................................................44
6.8. Enforceable Obligations.......................................................................44
6.9. No Default....................................................................................45
6.10. Ownership.....................................................................................45
6.11. Indebtedness..................................................................................45
6.12. Litigation....................................................................................45
6.13. Taxes.........................................................................................45
6.14. Compliance with Law...........................................................................45
6.15. Compliance with ERISA.........................................................................46
6.16. Organization Structure/Subsidiaries...........................................................47
6.17. Use of Proceeds; Margin Stock.................................................................47
6.18. Government Regulation.........................................................................47
6.19. Environmental Matters.........................................................................47
6.20. Solvency......................................................................................48
6.21. Investments...................................................................................49
6.22. Location of Properties........................................................................49
6.23. Disclosure....................................................................................49
-ii-
TABLE OF CONTENTS
(continued)
PAGE
6.24. Licenses, etc.................................................................................49
6.25. No Burdensome Restrictions....................................................................49
6.26. Excluded Material Subsidiaries................................................................49
6.27. Foreign Assets Control Regulations, Etc.......................................................50
SECTION 7 AFFIRMATIVE COVENANTS.....................................................................50
7.1. Information Covenants.........................................................................50
7.2. Financial Covenants...........................................................................54
7.3. Preservation of Existence.....................................................................54
7.4. Books and Records.............................................................................55
7.5. Compliance with Law...........................................................................55
7.6. Payment of Taxes and Other Indebtedness.......................................................55
7.7. Insurance.....................................................................................55
7.8. Maintenance of Assets.........................................................................55
7.9. Performance of Obligations....................................................................56
7.10. Use of Proceeds...............................................................................56
7.11. Audits/Inspections............................................................................56
7.12. Additional Credit Parties.....................................................................56
7.13. Interest Rate Protection Agreements...........................................................56
7.14. Construction..................................................................................57
7.15. Acquisitions and Sales........................................................................57
SECTION 8 NEGATIVE COVENANTS........................................................................57
8.1. Indebtedness..................................................................................57
8.2. Liens.........................................................................................58
8.3. Nature of Business............................................................................58
8.4. Consolidation and Merger......................................................................58
8.5. Sale or Lease of Assets.......................................................................58
8.6. Advances, Investments and Loans...............................................................59
8.7. Restricted Payments...........................................................................59
8.8. Transactions with Affiliates..................................................................59
8.9. Fiscal Year; Organizational Documents.........................................................59
-iii-
TABLE OF CONTENTS
(continued)
PAGE
8.10. Limitations...................................................................................59
8.11. Other Negative Pledges........................................................................59
SECTION 9 EVENTS OF DEFAULT.........................................................................60
9.1. Events of Default.............................................................................60
9.2. Acceleration; Remedies........................................................................62
9.3. Allocation of Payments After Event of Default.................................................63
SECTION 10 AGENCY PROVISIONS.........................................................................64
10.1. Appointment...................................................................................64
10.2. Delegation of Duties..........................................................................64
10.3. Exculpatory Provisions........................................................................64
10.4. Reliance on Communications....................................................................65
10.5. Notice of Default.............................................................................65
10.6. Non-Reliance on Administrative Agent and Other Lenders........................................66
10.7. Indemnification...............................................................................66
10.8. Administrative Agent in Its Individual Capacity...............................................67
10.9. Successor Agent...............................................................................67
SECTION 11 MISCELLANEOUS.............................................................................68
11.1. Notices.......................................................................................68
11.2. Right of Set-Off..............................................................................68
11.3. Benefit of Agreement..........................................................................68
11.4. No Waiver; Remedies Cumulative................................................................71
11.5. Payment of Expenses; Indemnification..........................................................71
11.6. Amendments, Waivers and Consents..............................................................72
11.7. Counterparts/Telecopy.........................................................................73
11.8. Headings......................................................................................73
11.9. Defaulting Lender.............................................................................73
11.10. Survival of Indemnification and Representations and Warranties................................73
11.11. Governing Law; Jurisdiction...................................................................73
11.12. Waiver of Jury Trial..........................................................................74
11.13. Time..........................................................................................74
-iv-
TABLE OF CONTENTS
(continued)
PAGE
11.14. Severability..................................................................................74
11.15. Entirety......................................................................................74
11.16. Binding Effect................................................................................75
11.17. Confidentiality...............................................................................75
11.18. Further Assurances............................................................................76
11.19. Release of Guarantors.........................................................................76
11.20. USA Patriot Act...............................................................................76
11.21. Limitation on Liability.......................................................................76
-v-
SCHEDULES
Schedule EG Eligible Ground Leases
Schedule I Term Loan Amounts
Schedule 1.1(a) Term Loan Commitment Percentages
Schedule 6.16 Organization Structure/Subsidiaries
Schedule 6.22 Properties
Schedule 6.26 Excluded Material Subsidiaries
Schedule 7.10 Target Indebtedness
Schedule 8.2 Existing Liens
Schedule 8.6 Excluded Investments
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(a) Form of Notice of Borrowing
Exhibit 2.1(c) Form of Term Note
Exhibit 2.1(d) Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
-vi-
TERM LOAN CREDIT AGREEMENT (2007)
THIS TERM LOAN CREDIT AGREEMENT (2007) (as amended, supplemented or
otherwise modified from time to time, this "CREDIT AGREEMENT") is entered into
as of September 17, 2004, among BRANDYWINE REALTY TRUST ("BRT"), a Maryland real
estate investment trust and BRANDYWINE OPERATING PARTNERSHIP, L.P. ("BOP"), a
Delaware limited partnership (collectively, the "BORROWERS"), certain
Subsidiaries of the Borrowers, as Guarantors, the Lenders (as defined herein),
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as Administrative Agent for the Lenders and
JPMORGAN CHASE BANK, as Syndication Agent for the Lenders.
RECITALS:
WHEREAS, the Borrowers desire that the Lenders provide a single draw
term credit facility in an aggregate amount of up to $320.0 million;
WHEREAS, the Guarantors have agreed to unconditionally guarantee all
the obligations of the Borrowers hereunder; and
WHEREAS, the Lenders party hereto have agreed to make the requested
term loan credit facility available to the Borrowers on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1. DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"ACQUISITION" means the acquisition by BOP of a substantial portion of
the assets and partnership interests of the Target pursuant to and in accordance
with the Contribution Agreement.
"ADJUSTED BASE RATE" means the Base Rate plus the Applicable
Percentage.
"ADJUSTED EURODOLLAR RATE" means the Eurodollar Rate plus the
Applicable Percentage.
"ADJUSTED NOI" means NOI less (a) an annual sum of $.50 per square foot
for all Properties and (b) all interest income of the Combined Parties for the
applicable period.
"ADMINISTRATIVE AGENT" means Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. or any
successor administrative agent appointed pursuant to Section 10.9.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation,
partnership, limited liability company or real estate investment trust if such
Person possesses, directly or indirectly, the power (i) to vote 10% or more of
the securities having ordinary voting power for the election of directors of
such corporation or real estate investment trust or to vote 10% or more of the
partnership or membership interests of such partnership or limited liability
company or (ii) to direct or cause direction of the management and policies of
such corporation, trust, limited liability company or partnership, whether
through the ownership of voting securities, as managing member or general
partner, by contract or otherwise.
"AGENCY SERVICES ADDRESS" means ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, or such other address as may be identified by
written notice from the Administrative Agent to the Borrowers.
"AGENT-RELATED PERSONS" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"ANNUALIZED MODIFIED ADJUSTED NOI" means an amount equal to (a)
Adjusted NOI for the prior fiscal quarter for all Properties owned during such
entire fiscal quarter multiplied times four plus (b) Adjusted NOI for the number
of days owned for all Properties acquired during such fiscal quarter multiplied
by a fraction equal to 365 divided by the number of days such Property was owned
by a Combined Party.
"APPLICABLE PERCENTAGE" means:
(a) if (i) BRT does not have at least two Unsecured Senior Debt Ratings in
effect and (ii) BOP does not have at least two Unsecured Senior Debt Ratings in
effect, the appropriate applicable percentages corresponding to the Pricing
Level in effect based upon the Leverage Ratio as of the most recent Calculation
Date as shown below:
------------- ------------------------------------------------------------------ ------------------------- ---------------------
Pricing Leverage Applicable Percentage for Applicable Percentage
Level Ratio Eurodollar Loans for Base Rate Loans
------------- ------------------------------------------------------------------ ------------------------- ---------------------
I [less than or equal to] .35 to 1.0 1.05% 0.05%
------------- ------------------------------------------------------------------ ------------------------- ---------------------
II [greater than] .35 to 1.0 but [less than or equal to] .45 to 1.0 1.20% 0.20%
------------- ------------------------------------------------------------------ ------------------------- ---------------------
III [greater than] .45 to 1.0 but [less than or equal to] .50 to 1.0 1.30% 0.30%
------------- ------------------------------------------------------------------ ------------------------- ---------------------
IV [greater than] .50 to 1.0 1.55%* 0.55%*
------------- ------------------------------------------------------------------ ------------------------- ---------------------
V *If any Term Loans are outstanding 90 days 1.70% 0.70%
following the Closing Date and at any time
thereafter the Leverage Ratio is greater
than .575 to 1.0
------------- ------------------------------------------------------------------ ------------------------- ---------------------
-2-
(b) if either (i) BRT has at least two Unsecured Senior Debt Ratings in
effect or (ii) BOP has at least two Unsecured Senior Debt Ratings in effect, the
appropriate applicable percentages corresponding to the Pricing Level based upon
the lowest Unsecured Senior Debt Ratings of (A) BRT, if BRT has at least two
Unsecured Senior Debt Ratings in effect and BOP does not, (B) BOP, if BOP has at
least two Unsecured Senior Debt Ratings in effect and BRT does not or (C) if
both BRT and BOP have at least two Unsecured Senior Debt Ratings in effect, the
Borrower with the lowest Unsecured Senior Debt Rating, in each case as of the
most recent Calculation Date in the table below; provided that if either or both
of BOP or BRT has three Unsecured Senior Debt Ratings in effect, the appropriate
applicable percentages shall correspond to the Pricing Level based on the lower
Unsecured Senior Debt Rating of the two highest Unsecured Senior Debt Ratings of
the applicable Borrower under clauses (A), (B) and (C) above:
--------------------- ----------------------------------------------- ------------------------ ------------------------
Pricing Level Unsecured Senior Debt Rating Applicable Percentage Applicable Percentage
for Eurodollar Loans for Base Rate Loans
--------------------- ----------------------------------------------- ------------------------ ------------------------
I BBB- or better from S&P, Baa3 or better from 1.10%* .10%*
▇▇▇▇▇'▇ and BBB- or better from Fitch
----------------------------------------------- ------------------------ ------------------------
*If any Term Loans are outstanding 90 days 1.25% .25%
following the Closing Date and at any time
thereafter the Leverage Ratio is greater than
.575 to 1.0
--------------------- ----------------------------------------------- ------------------------ ------------------------
II (less than) BBB- from S&P, (less than) Baa3 1.45%* .45%*
from ▇▇▇▇▇'▇ or (less than) BBB- from Fitch
----------------------------------------------- ------------------------ ------------------------
*If any Term Loans are outstanding 90 days 1.70% .70%
following the Closing Date and at any time
thereafter the Leverage Ratio is greater than
.575 to 1.0
--------------------- ----------------------------------------------- ------------------------ ------------------------
The Applicable Percentage for Term Loans shall be determined and
adjusted on the date (each a "CALCULATION DATE") (i) if the Applicable
Percentage is determined pursuant to clause (a) above, five Business Days after
the date on which the Borrowers provide the officer's certificate in accordance
with the provisions of Section 7.1(c); provided that if the Borrowers fail to
provide the officer's certificate required by Section 7.1(c) on or before the
date required by Section 7.1(c), the Applicable Percentage for Term Loans from
such date shall be based on Pricing Level III in clause (a) above until such
time that an appropriate officer's certificate is provided whereupon the Pricing
Level shall be determined by the then current Leverage Ratio or (ii) if the
Applicable Percentage is determined pursuant to clause (b) above, the date BRT
or BOP obtains an Unsecured Senior Debt Rating from at least two of S&P, ▇▇▇▇▇'▇
or Fitch or the date there is a change in any Unsecured Senior Debt Rating of
BRT or BOP that would cause a change in the Applicable Percentage pursuant to
clause (b) above, in each case promptly after the Administrative Agent receives
notice regarding such Unsecured Senior Debt Rating. In any event, the highest
margin set forth in the applicable pricing grid shall apply whenever any Default
or Event of Default has occurred and is continuing. Each Applicable Percentage
shall be effective from one Calculation Date until the next Calculation Date.
Any adjustment in the Applicable Percentage shall be applicable both to new Term
Loans made and to all existing Term Loans.
-3-
The Borrowers shall promptly deliver to the Administrative Agent, at
the address set forth on Schedule 11.1 and at the Agency Services Address,
information regarding any change in the Unsecured Senior Debt Rating or Leverage
Ratio that would change the existing Pricing Level for the Applicable Percentage
as set forth above.
"ARRANGERS" means Bear, ▇▇▇▇▇▇▇ & Co. Inc. and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., in their capacity as joint lead arrangers and joint bookrunners.
"BANKRUPTCY CODE" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BASE RATE" means, for any day, the rate per annum equal to the greater
of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the
Prime Rate in effect on such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate, respectively.
"BASE RATE LOAN" means a Loan bearing interest based on a rate
determined by reference to the Base Rate.
"BOP" means Brandywine Operating Partnership, L.P., a Delaware limited
partnership, together with any successors and permitted assigns.
"BORROWERS" means BRT and BOP and "BORROWER" means either one of them.
"BRT" means Brandywine Realty Trust, a Maryland real estate investment
trust, together with any successors and permitted assigns.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required by law
or other governmental action to close in New York, New York; provided that in
the case of Eurodollar Loans, such day is also a day on which dealings between
banks are carried on in Dollar deposits in the London interbank market.
"CALCULATION DATE" has the meaning set forth in the definition of
Applicable Percentage in this Section 1.1.
"CAPITAL EXPENDITURES" means all expenditures of the Borrowers and
their Subsidiaries which, in accordance with GAAP, would be classified as
capital expenditures, including, without limitation, Capital Leases.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on a
balance sheet of that Person.
-4-
"CAPITAL MARKETS TRANSACTIONS" means the issuance by either Borrower or
any of their respective Subsidiaries of debt securities (excluding mortgage
financings) or common or preferred equity or equity equivalent securities
(however designated, and whether voting or non-voting, but excluding equity not
issued for the purpose of raising cash (including, but not limited to, equity
issued upon exercise of options or upon awards to company executives or trustees
and equity issued under any dividend reinvestment plan)) following the Closing
Date.
"CAPITAL PERCENTAGE" means, with respect to the interest of a Credit
Party or one of its Subsidiaries in another Person, the percentage interest of
such Person based on the aggregate amount of net capital contributed by such
Credit Party or such Subsidiary in such Person at the time of determination
relative to all capital contributions made in such Person at such time of
determination.
"CAPITALIZATION RATE" means 9.25%.
"CASH EQUIVALENTS" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) Dollar denominated time and
demand deposits and certificates of deposit of (i) any Lender or any of its
Affiliates, (ii) any domestic commercial bank having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is at
least P-1 or the equivalent thereof (any such bank being an "APPROVED BANK"), in
each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including any of the
Lenders) or securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which a Credit Party shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial
institutions having capital of at least $500,000,000 and the portfolios of which
are limited to investments of the character described in the foregoing
subdivisions (a) through (d).
"CHANGE OF CONTROL" means any of the following events:
(a) any "person" or "group" (within the meaning of Section 13(d) or
14(d) of the Exchange Act) has become, directly or indirectly, the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time or the occurrence of any
contingency), by way of merger, consolidation or otherwise, of 20% or more of
the voting power of BRT on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other
securities of BRT convertible into or exercisable for voting power of BRT
(whether or not such securities are then currently convertible or exercisable);
or
-5-
(b) during any period of up to twelve (12) consecutive months
commencing on or after the Closing Date, individuals who were trustees of BRT at
the beginning of such period (the "CONTINUING TRUSTEES"), plus any new trustees
whose election or appointment was approved by a majority of the Continuing
Trustees then in office, shall cease for any reason to constitute a majority of
the Board of Trustees of BRT; or
(c) BRT fails to directly own at least 75% of the aggregate ownership
interests in BOP (giving effect to any convertible interests with respect
thereto).
"CLOSING DATE" means the date hereof.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"COMBINED PARTIES" means the Credit Parties and their Subsidiaries and
all joint ventures or partnerships to which a Credit Party or one of its
Subsidiaries is a party.
"COMMITMENT" or "COMMITMENTS" means with respect to each Lender, the
Term Loan Commitment Percentage of such Lender multiplied by the Term Loan
Committed Amount.
"CONSTRUCTION-IN-PROCESS" means a Property on which construction of
improvements (excluding tenant improvements and excluding work prior to erection
of the structure of the building) has commenced and is proceeding to completion
in the ordinary course but has not yet been completed (as such completion shall
be evidenced by a temporary or permanent certificate of occupancy permitting use
of such Property by the general public). Any such Property shall be treated as
Construction-in-Process until the earlier of (i) twelve (12) months from the
date of completion (as evidenced by a certificate of occupancy permitting use of
such Property by the general public) or (ii) such Property achieves an 85%
occupancy rate (determined on the basis of tenants paying rent).
"CONTINUING TRUSTEES" has the meaning set forth in the definition of
Change of Control.
"CONTRIBUTION AGREEMENT" means that certain Contribution Agreement
dated August 18, 2004, by and among TRC Realty, Inc.-GP, a Pennsylvania
corporation, TRC-LB LLC, a Delaware limited liability company, and TRC
Associates Limited Partnership, a Delaware limited partnership, and Brandywine
Operating Partnership, L.P., a Delaware limited partnership, as in effect on the
date hereof.
"CREDIT DOCUMENTS" means this Credit Agreement, the Notes, any Notice
of Borrowing, any Notice of Continuation/Conversion, the Fee Letter and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
-6-
"CREDIT PARTIES" means the Borrowers and the Guarantors and "CREDIT
PARTY" means any one of them.
"DEBT PAYMENTS" means, for any period, for the Combined Parties, the
sum of (a) Interest Expense for such period plus (b) all payments of principal
and any required prepayments on Funded Debt of the Combined Parties (other than
balloon payments) for such period, ending on the date of determination
(including the principal component of payments due on Capital Leases during the
applicable period ending on the date of determination).
"DEFAULT" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" means, at any time, any Lender that, (a) has failed
to make a Loan, (b) has failed to pay to the Administrative Agent or any Lender
an amount owed by such Lender pursuant to the terms of this Credit Agreement
(but only for so long as such amount has not been repaid) or (c) has been deemed
insolvent or has become subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar official.
"DOLLARS" and "$" each means the lawful currency of the United States
of America.
"EFFECTIVE DATE" means the date, as specified by the Administrative
Agent, on which the conditions set forth in Section 5.1 shall have been
fulfilled (or waived in the sole discretion of the Lenders under the terms of
Section 11.6) and on which the Term Loans shall have been made.
"ELIGIBLE ASSIGNEE" means (a) any Lender or any Affiliate of a Lender
or (b) a commercial bank, finance company or other financial institution
reasonably acceptable to the Administrative Agent. Neither a Borrower nor any
Affiliate of the Borrowers shall qualify as an Eligible Assignee.
"ELIGIBLE GROUND LEASE" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, bankruptcy new lease rights and other customary provisions for the
benefit of a leasehold mortgagee or has equivalent protection for a leasehold
permanent mortgagee by a subordination to such leasehold permanent mortgagee of
the landlord's fee interest, and (c) is otherwise acceptable for non-recourse
leasehold mortgage financing under customary prudent lending requirements. The
Eligible Ground Leases as of the date of this Credit Agreement are listed on
Schedule EG.
"ELIGIBLE LAND" means undeveloped land which is zoned for office or
industrial use and which is not subject to a building moratorium or other
restriction on construction.
"ENVIRONMENTAL CLAIM" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or written
claim whether administrative, judicial or private in nature arising (a) pursuant
to, or in connection with, an actual or alleged violation of any Environmental
Law, (b) in connection with any Hazardous Material, (c) from any assessment,
abatement, removal, remedial, corrective, or other response action in connection
with an Environmental Law or other order of a Governmental Authority or (d) from
any actual or alleged damage, injury, threat, or harm to health, safety, natural
resources, or the environment.
-7-
"ENVIRONMENTAL LAWS" means any current or future legal requirement of
any Governmental Authority pertaining to (a) the protection of health, safety,
and the indoor or outdoor environment, (b) the conservation, management, or use
of natural resources and wildlife, (c) the protection or use of surface water
and groundwater or (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure to, any
hazardous or toxic substance or material or (e) pollution (including any release
to land surface water and groundwater) and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. 9601 et seq., Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of
1984, 42 U.S.C. 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act of 1966, as
amended, 42 U.S.C. 7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C.
2601 et seq., Hazardous Materials Transportation Act, 49 U.S.C. App. 1801 et
seq., Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et
seq., Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq., Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., Safe Drinking Water
Act of 1974, as amended, 42 U.S.C. 300(f) et seq., any analogous implementing or
successor law, and any amendment, rule, regulation, order, or directive issued
thereunder.
"EQUITY ISSUANCE" means any issuance by a Credit Party to any Person
(other than another Credit Party) of shares of its capital stock, preferred
stock, common or preferred shares of beneficial interest, partnership or
membership interests or other equity interests, including pursuant to the
exercise of options or warrants or pursuant to the conversion of any debt
securities to equity; provided that the definition of Equity Issuance as used
herein shall not include (a) issuances of equity to employees or trustees of a
Credit Party to the extent such issuances do not exceed $1,000,000 in any one
instance or $5,000,000, in the aggregate, during the term of this Credit
Agreement or (b) issuances of common stock or common or preferred shares of
beneficial interests the proceeds of which are used for the sole purpose of
conversion or redemption of convertible preferred stock or perpetual preferred
stock or preferred shares of beneficial interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA AFFILIATE" means an entity, whether or not incorporated, which
is under common control with a Borrower or any of its Subsidiaries within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a group which
includes a Credit Party or any Subsidiary of a Credit Party and which is treated
as a single employer under subsection (b) or (c) of Section 414 of the Code.
-8-
"ERISA EVENT" means (i) with respect to any Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA); (ii) the withdrawal of a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate from a Multiple Employer
Plan during a plan year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent to terminate or the
actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(iv) the institution of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (v) any event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan; (vi) the complete or
partial withdrawal of a Credit Party, any Subsidiary of a Credit Party or any
ERISA Affiliate from a Multiemployer Plan; (vii) the conditions for imposition
of a lien under Section 302(f) of ERISA exist with respect to any Plan; or
(viii) the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"EURODOLLAR LOAN" means a Term Loan bearing interest based on a rate
determined by reference to the Adjusted Eurodollar Rate.
"EURODOLLAR RATE" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions, extensions
and renewals), a per annum interest rate as determined on the basis of the
offered rates for deposits in Dollars, for the period of time comparable to such
Interest Period that appears on the Dow ▇▇▇▇▇ Market Service (formerly known as
Telerate) page 3750 as of 11:00 a.m. London time on the day that is two (2)
Business Days preceding the first day of such Interest Period; provided,
however, if the rate described above does not appear on the Dow ▇▇▇▇▇ Market
Service on any applicable interest determination date, the Eurodollar Rate shall
be the rate (rounded upwards to the nearest one-hundred thousandth of one
percent, if necessary) for deposits in Dollars for a period substantially equal
to the Interest Period on the Reuters Page "LIBO" (or such other page as may
replace the LIBO Page on that service for the purpose of displaying such rates),
as of 11:00 a.m. (London Time), on the day that is two (2) Business Days prior
to the beginning of such Interest Period. If both the Dow ▇▇▇▇▇ Market Service
and Reuters systems are unavailable, then the rate for that date will be
determined on the basis of the offered rates for deposits in Dollars for a
period of time comparable to such Interest Period which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) Business Days preceding the first day of such
Interest Period as selected by Administrative Agent. The principal London office
of each of the four major London banks will be requested to provide a quotation
of its U.S. dollar deposit offered rate. If at least two such quotations are
provided, the rate for that date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided, the rate for that date will be
determined on the basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to such Interest Period offered
by major banks in New York City at approximately 11:00 a.m. (New York City
time), on the day that is two (2) Business Days preceding the first day of such
Interest Period. In the event that Administrative Agent is unable to obtain any
such quotation as provided above, it will be deemed that the Eurodollar Rate for
a Eurodollar Loan cannot be determined and the provisions of Section 3.9 shall
apply. In the event that the Board of Governors of the Federal Reserve System
shall impose a Eurodollar Reserve Percentage with respect to Eurodollar deposits
of the Person serving as the Administrative Agent, then for any period during
which such Eurodollar Reserve Percentage shall apply, the Eurodollar Rate shall
be equal to the amount determined above divided by an amount equal to 1 minus
the Eurodollar Reserve Percentage.
-9-
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation D
as the maximum reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable with respect
to Eurodollar liabilities as that term is defined in Regulation D (or against
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Loans is determined) with respect to member
banks of the Federal Reserve System, whether or not any Lender has any
Eurodollar liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurodollar liabilities and as
such shall be deemed subject to reserve requirements without benefits of credits
for proration, exceptions or offsets that may be available from time to time to
a Lender. The Adjusted Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" means any of the events or circumstances described
in Section 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
modified, succeeded or replaced from time to time, and the rules and regulations
promulgated thereunder.
"EXCLUDED MATERIAL SUBSIDIARIES" means the Material Subsidiaries set
forth on Schedule 6.26.
"EXISTING DEBT" means the indebtedness of the Target listed on Schedule
7.10 hereto.
"EXISTING REVOLVING CREDIT AGREEMENT" means the Credit Agreement dated
as of May 24, 2004 among the Borrowers, certain Subsidiaries of the Borrowers,
the lenders named therein, and JPMorgan Chase Bank, as administrative agent, as
it may be amended, restated or modified from time to time, including without
limitation by the First Amendment to Existing Revolving Credit Agreement.
"EXISTING TERM LOAN CREDIT AGREEMENT" means the Term Credit Agreement
dated as of July 15, 2002 among the Borrowers, certain Subsidiaries of the
Borrowers, the lenders named therein, and Bank of America, N.A., as
administrative agent.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, at the discretion of the Administrative Agent, 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 Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (b) if no such rate is
so published on such next preceding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Administrative Agent on such
day on such transactions as determined by the Administrative Agent.
-10-
"FEE LETTER" means that certain letter agreement, dated as of August
18, 2004 among the Administrative Agent, the Syndication Agent, the Arrangers
and the Borrowers, as amended, modified, supplemented or replaced from time to
time.
"FIRST AMENDMENT TO THE EXISTING REVOLVING CREDIT AGREEMENT" means that
certain Amendment No. 1 To Credit Agreement dated as of September 10, 2004 by
and among the Borrowers, certain Subsidiaries of the Borrowers, as Guarantors,
the Lenders party hereto and JPMorgan Chase Bank, as Administrative Agent for
the Lenders, Swing Lender and as Issuing Lender.
"FITCH" means Fitch Inc. or any successor or assignee of the business
of such company in the business of rating securities.
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio of (a)
Adjusted NOI for such period to (b) the sum of Debt Payments for such period
plus all dividends on preferred shares of beneficial interest of BRT or
preferred operating partnership units of BOP (not owned by BRT) for such period
plus any letter of credit fees for such period.
"FUNDED DEBT" means, without duplication, the sum of (a) all
Indebtedness of the Combined Parties for borrowed money, (b) all purchase money
Indebtedness of the Combined Parties, (c) the principal portion of all
obligations of the Combined Parties under Capital Leases, (d) all obligations,
contingent or otherwise, relative to the face amount of all letters of credit
(other than letters of credit supporting trade payables in the ordinary course
of business), whether or not drawn, and banker's acceptances issued for the
account or upon the application of a Combined Party (it being understood that,
to the extent an undrawn letter of credit supports another obligation
constituting Indebtedness, in calculating aggregated Funded Debt only such other
obligation shall be included), (e) all Guaranty Obligations of the Combined
Parties with respect to the indebtedness of another Person of the types
described in this definition, (f) all indebtedness of another Person of the
types described in this definition that is secured by a Lien on any property of
the Combined Parties whether or not such indebtedness has been assumed by a
Combined Party, (g) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product of a Combined Party where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an operating
lease in accordance with GAAP, (h) all obligations of the Combined Parties in
respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate or commodity price hedging
agreements and (i) all take out loan commitments to the extent such take out
commitment is not supported by a financial commitment from a third party
containing standard terms and conditions; provided that, for purposes of
calculating the Leverage Ratio, the Secured Debt Ratio, the Unsecured Debt
limitation and the Unencumbered Cash Flow Ratio, to the extent Funded Debt
includes Indebtedness in respect of Construction-in-Process, the amount of such
Funded Debt shall be deemed to be the total construction costs incurred for the
Construction-in-Process as of such date. The calculation of Funded Debt of the
Combined Parties shall be subject to Section 1.4.
"FUNDS FROM OPERATIONS", when used with respect to any Person, shall
have the meaning given to such term in, and shall be calculated in accordance
with, standards promulgated by the National Association of Real Estate
Investment Trusts in effect from time to time.
-11-
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"GOVERNMENTAL AUTHORITY" means any Federal, state, local or provincial
court or governmental agency, authority, instrumentality or regulatory body.
"GUARANTORS" means (a) the Material Subsidiaries of the Borrowers as of
the Closing Date, other than the Excluded Material Subsidiaries, and (b) such
other Persons who may from time to time execute a Joinder Agreement (or
otherwise consent in writing to becoming a Guarantor hereunder), as required by
Section 7.12 or otherwise, in each case together with their successors and
assigns; in each case unless released as a Guarantor pursuant to Section 8.5(b)
or Section 11.19.
"GUARANTY" means the guaranty of payment provided by the Guarantors
pursuant to Section 4.
"GUARANTY OBLIGATIONS" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guaranteeing or
intended to guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (a) to purchase any such Indebtedness or other
obligation or any property constituting security therefor, (b) to advance or
provide funds or other support for the payment or purchase of such Indebtedness
or obligation or to maintain working capital, solvency or other balance sheet
condition of such other Person (including, without limitation, maintenance
agreements, comfort letters, take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of Indebtedness of
such other Person, (c) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or obligation
against loss in respect thereof. The amount of any Guaranty Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation is
made. It is understood and agreed that for purposes of any "completion guaranty"
provided by a Credit Party or one of its Subsidiaries, the amount of
Indebtedness associated with such completion guaranty shall be none unless such
completion guaranty is enforced (or written notice of the intent to enforce such
completion guaranty has been received) at which time the Indebtedness associated
with such completion guaranty shall equal the remaining cost to complete the
project plus ten percent until such time as a certificate of occupancy is
issued.
"HAZARDOUS MATERIALS" means any substance, material or waste defined or
regulated in or under any Environmental Laws.
"INCENTIVE STOCK PLAN" means the BRT 1997 Long-Term Incentive Plan, as
amended from time to time, and any other equity incentive plan hereafter
established by BRT or one of its Subsidiaries pursuant to which awards of equity
interests in BRT or such Subsidiary may be made to employees of BRT or one of
its Subsidiaries.
-12-
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
purchased by such Person to the extent of the value of such property (other than
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations, other
than intercompany items, of such Person issued or assumed as the deferred
purchase price of property or services purchased by such Person which would
appear as liabilities on a balance sheet of such Person, (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f) all
Guaranty Obligations of such Person, (g) the principal portion of all
obligations of such Person under (i) Capital Leases and (ii) any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product of such Person where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP, (h) all obligations of such Person in
respect of interest rate protection agreements, foreign currency exchange
agreements, or other interest or exchange rate or commodity price hedging
agreements, (i) the maximum amount of all performance and standby letters of
credit issued or bankers' acceptances facilities created for the account or upon
the application of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (j) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date; provided that Indebtedness shall
not include preferred stock which carries a defined term if its conversion or
redemption occurs solely through the issuance of additional equity or from the
proceeds of an equity offering, (k) all obligations evidenced by take out
commitments, (l) the aggregate amount of uncollected accounts receivables of
such Person subject at such time to a sale of receivables (or similar
transaction) regardless of whether such transaction is effected without recourse
to such Person or in a manner that would not be reflected on the balance sheet
of such Person in accordance with GAAP and (m) all obligations of such Person to
repurchase any securities which repurchase obligation is related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares or forward equity purchase contracts.
Subject to Section 1.4, the Indebtedness of any Person shall include the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is legally obligated or has a reasonable expectation of being liable with
respect thereto.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of (a)
Adjusted NOI for such period to (b) Interest Expense for such period.
"INTEREST EXPENSE" means, for any period, with respect to the Combined
Parties, all net interest expense, whether paid or accrued (including that
portion applicable to Capital Leases in accordance with GAAP) plus capitalized
interest.
"INTEREST PAYMENT DATE" means (a) as to Base Rate Loans, the last
Business Day of each fiscal quarter and the Maturity Date, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last day
of such Interest Period and the Maturity Date, and (c) as to any Eurodollar Loan
having an Interest Period longer than three months, the day which is three
months after the first day of such Interest Period, the last day of such
Interest Period, and the Maturity Date.
-13-
"INTEREST PERIOD" means, as to Eurodollar Loans, a period of one, two,
three or six months' duration as the Borrowers may elect, commencing, in each
case, on the date of the borrowing (including, as applicable, continuations and
conversions thereof); provided, however, (a) if any Interest Period would end on
a day which is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding Business
Day) and (b) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last Business Day of such
calendar month. Notwithstanding the foregoing:
(i) if any Interest Period for any Term Loan would otherwise
end after the Maturity Date, respectively, such Interest Period shall
end on the Maturity Date; and
(ii) notwithstanding clause (i) above, no Interest Period
shall have a duration of less than one month and, if the Interest
Period for any Eurodollar Loan would otherwise be a shorter period,
such Loan shall not be available hereunder for such period, provided
that with respect to such portion of a Term Loan as shall be scheduled
to be repaid on the Maturity Date occurring within such one-month
period, an Interest Period ending on the Maturity Date shall be
permissible.
"INVESTMENT" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
assets, shares of capital stock, bonds, notes, debentures, partnership
interests, membership interests, joint ventures or other ownership interests or
other securities of such other Person or (b) any deposit with, or advance, loan
or other extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the ordinary course
of business) or (c) any other capital contribution to or investment in such
Person, including, without limitation, any Guaranty Obligation (including any
support for a letter of credit issued on behalf of such Person) incurred for the
benefit of such Person.
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the form
of Exhibit 7.12.
"LENDERS" means, collectively, each Person that is identified as a
"Lender" on the signature pages hereto and has a Commitment or that holds a Term
Loan, and any Person which may become a Lender by way of assignment in
accordance with the terms hereof, together with their successors and permitted
assigns.
"LEVERAGE RATIO" means the ratio of (a) Funded Debt to (b) the sum (the
"TOTAL ASSET VALUE") of (i) Property Value plus (ii) all unrestricted cash of
the Combined Parties plus (iii) all Cash Equivalents of the Combined Parties
plus (iv) all unrestricted tenant security deposits held by the Combined Parties
plus (v) the aggregate of all amounts of the Combined Parties incurred and paid
with respect to Construction-in-Process and Eligible Land, which credit will be
limited to
-14-
20% of Total Asset Value in the aggregate and 15% of Total Asset Value for any
single project or parcel, plus (vi) all notes receivable of the Combined
Parties, which credit will be limited to 5% of Total Asset Value, plus (vii) all
investments of the Combined Parties in (based on the actual cash investment in),
directly or indirectly, entities (other than Combined Parties) holding real
estate assets, which credit will be limited to 2.5% of Total Asset Value;
provided that from the Closing Date until October 1, 2005, Total Asset Value
shall be calculated by using the value at cost of the Pre-Stabilized Acquisition
Properties in lieu of the Property Value of the Pre-Stabilized Acquisition
Properties.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation, any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, and any lease in the nature thereof.
"LOAN" or "LOANS" means the Term Loans, individually or collectively,
as applicable.
"MARKET FUNDED DEBT PAYMENTS" means the scheduled debt payments that
would have been due during a twelve-month period with respect to the Unsecured
Debt of the Combined Parties as of the last day of the prior fiscal quarter
assuming a principal mortgage amortization of 25 years and assuming the Market
Interest Rate as in effect on the date that the Market Funded Debt Payments are
calculated.
"MARKET INTEREST RATE" means an interest rate equal to the greater of
(a) the prior thirty (30) day average of the most recent seven year U.S.
Treasury Note plus 1.75% per annum or (b) the actual average interest rate on
the Loans for the preceding twelve (12) months.
"MATERIAL ADVERSE EFFECT" means any event, development or circumstance
that has had or would reasonably be expected to have a material adverse effect
on (a) the business, assets, property, results of operations, condition
(financial or otherwise) or prospects of BRT, BOP or the Credit Parties and
their Subsidiaries taken as a whole, (b) the ability of a Borrower to perform
its respective obligations under this Credit Agreement or any of the other
Credit Documents, (c) the ability of a Guarantor to perform its respective
obligations under this Credit Agreement or any of the other Credit Documents,
unless the Guarantor subject to such material adverse effect could be
immediately released as a Guarantor in compliance with Section 8.5(b), or (d)
the validity or enforceability of this Credit Agreement, any of the other Credit
Documents, or the rights and remedies of the Agent and the Lenders hereunder or
thereunder.
"MATERIAL SUBSIDIARY" means a Subsidiary of a Credit Party in which
such Credit Party owns, directly or indirectly, more than 65% of the capital
stock, partnership interests, membership interests or other equity interests;
provided that with respect to a Subsidiary of a Credit Party that is not a
corporation and whose ownership interest is not otherwise specified, such
percentage interest shall be the Capital Percentage of such Credit Party in such
Subsidiary.
"MATURITY DATE" means May 24, 2007.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating securities.
-15-
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in Section 3(37) or Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means a Plan (other than a Multiemployer Plan)
in which a Credit Party, a Subsidiary of a Credit Party or any ERISA Affiliate
and at least one employer other than a Credit Party, a Subsidiary of a Credit
Party or any ERISA Affiliate are contributing sponsors.
"NET CASH PROCEEDS" means, with respect to an Equity Issuance, the
gross cash proceeds received from such Equity Issuance minus actual transaction
costs and discounts of issuance payable to third parties in connection
therewith.
"NET INCOME" means, for any period, the net income for such period of
the Combined Parties, as determined in accordance with GAAP.
"NET WORTH" means, as of any date, the net worth of Credit Parties and
their Subsidiaries on a consolidated basis, as determined in accordance with
GAAP.
"NOI" means, for any period, an amount equal to (a) Net Income for such
period (excluding the effect of any extraordinary or other non-recurring gains
or losses or other non-cash losses outside the ordinary course of business) plus
(b) an amount which in the determination of Net Income for such period has been
deducted for (i) proceeds to minority interests, (ii) income taxes, (iii)
depreciation and amortization and (iv) Interest Expense, less (c) 3% of the
total real estate revenue of the Combined Parties as a property management
expense.
"NON-EXCLUDED TAXES" has the meaning set forth in Section 3.12.
"NOTE" or "NOTES" means the Term Notes, individually or collectively,
as appropriate.
"NOTICE OF BORROWING" means a Term Loan request and certificate duly
executed by an authorized officer of the Borrowers for a Term Loan,
substantially in the form of Exhibit 2.1(a).
"NOTICE OF CONTINUATION/CONVERSION" means a request by the Borrowers to
continue an existing Eurodollar Loan to a new Interest Period or to convert a
Eurodollar Loan to a Base Rate Loan or to convert a Base Rate Loan to a
Eurodollar Loan, in the form of Exhibit 2.1(d).
"OBLIGATIONS" means, without duplication, all of the obligations,
liabilities and indebtedness of the Credit Parties to the Lenders and the
Administrative Agent, whenever arising, under this Credit Agreement, the Notes
or any of the other Credit Documents to which a Credit Party is a party,
including without limitation the outstanding principal amount of the Loans.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"PERMITTED INVESTMENTS" means, subject in all cases to Sections 7.10,
7.15 and 8.5(b), Investments which are (a) cash or Cash Equivalents, (b)
accounts receivable created, acquired or made in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms, (c)
Investments by one Credit Party in another Credit Party, (d) ▇▇▇▇▇▇▇
-16-
money and similar deposits in respect of Properties made in the ordinary course
of business, (e) the acquisition of new Properties; provided that the Credit
Parties may not invest in undeveloped land in excess of 5% of Total Asset Value,
in the aggregate, except for Eligible Land, (f) Investments (other than
Investments in subclause (g) below) in Subsidiaries which are not Credit Parties
and Investments in joint ventures (whether or not Subsidiaries) not to exceed,
in the aggregate at any one time, 15% of Total Asset Value, (g) Investments
existing on the date hereof in certain special purpose entities listed on
Schedule 8.6, (h) Investments in Construction-in-Process in which the aggregate
full-budgeted costs of construction of all Construction-in-Process do not
exceed, in the aggregate at any one time, 20% of Total Asset Value; (i)
repurchases by a Borrower or any Subsidiary of its capital stock or shares of
beneficial interest (including the repurchase of stock or shares of beneficial
interest that is retired, cancelled or terminated) or other ownership interests
(including options, warrants and stock appreciation rights) as long as prior to
and after giving effect thereto, no Default or Event of Default exists; and (j)
Investments not otherwise described in or covered by the other subclauses of
this definition including, without limitation, loans to officers, directors and
employees; provided that (i) such Investments do not exceed, in the aggregate at
any one time, 5% of Total Asset Value and (ii) such Investments, together with
the Investments referred to in subclauses (e), (f) and (h), do not exceed (in
the aggregate at any one time) 25% of Total Asset Value.
"PERMITTED LIENS" means (a) Liens securing Obligations, (b) Liens for
taxes not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof),
(c) Liens in respect of property imposed by law arising in the ordinary course
of business such as materialmens', mechanics', warehousemens', carriers',
landlords' and other nonconsensual statutory Liens which are not yet due and
payable or which are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof), (d) Liens arising from
good faith deposits in connection with or to secure performance of tenders,
bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money), (e) Liens arising
from good faith deposits in connection with or to secure performance of
statutory obligations and surety and appeal bonds, (f) easements, rights-of-way,
restrictions (including zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered property for its intended
purposes, (g) judgment Liens that would not constitute an Event of Default, (h)
Liens arising by virtue of any statutory or common law provision relating to
bankers' liens, rights of setoff or similar rights as to deposit accounts or
other funds maintained with a creditor depository institution, (i) Liens in
connection with Indebtedness permitted by Section 8.1(d); provided that if such
Lien is created with respect to an Unencumbered Property, the Borrowers shall
give the Administrative Agent written notice of the creation of such Lien in
accordance with Section 7.15(b) (if applicable), and (j) Liens existing on the
date hereof and identified on Schedule 8.2; provided that no such Lien shall
extend to any property other than the property subject thereto on the Closing
Date.
-17-
"PERSON" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated), or any Governmental Authority.
"PLAN" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" within the meaning of Section 3(5) of ERISA.
"PRE-STABILIZED ACQUISITION PROPERTIES" means the Properties located at
(i) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, (ii) ▇▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ and (iii) ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇.
"PRICING LEVEL" means, based upon the Unsecured Senior Debt Rating or
Leverage Ratio of the Borrowers, as applicable, the corresponding category (I,
II, III, IV or V) within the Applicable Percentage tables.
"PRIME RATE" means the per annum rate of interest announced publicly
from time to time by JPMorgan Chase Bank at its principal offices (or such other
principal office of such Person as communicated in writing to the Borrowers and
the Lenders) as its Prime Rate. Any change in the interest rate resulting from a
change in the Prime Rate shall become effective at the opening of business on
the day specified in the public announcement of such change.
"PRO FORMA BASIS" or "PRO FORMA" means with respect to (a) the sale of
a Property or the sale of an equity interest in a Credit Party, (b) the creation
of a Lien on a Property, (c) the acquisition of or Investment in a Property or
other asset that is subject to Section 7.15 or (d) any comparable event or
transaction, that such sale, creation of Lien, acquisition or Investment shall
be deemed to have occurred as of the first day of the four fiscal quarter period
ending as of the last day of the most recent fiscal quarter for which the
Lenders have received the financial information required by Section 7.1(b) and,
the calculation related thereto shall be performed in accordance with the terms
of Regulation S-X (including, without limitation, Article 11 thereof)
promulgated under the Exchange Act.
"PROPERTIES" means all real properties owned or ground-leased by the
Credit Parties and their Subsidiaries whether directly or through a joint
venture investment.
"PROPERTY VALUE" means Annualized Modified Adjusted NOI divided by the
Capitalization Rate.
"PUBLIC DEBT" means indebtedness which is not secured by any Liens and
not subordinated to the Obligations (or to the holders thereof), issued by a
Borrower in offerings registered under the Securities Act of 1933, as amended,
or in transactions exempt from registration pursuant to Rule 144A or Regulation
D thereunder or listed on non-U.S. securities exchanges.
"REGULATION D, O, T, U, OR X" means Regulation D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System (or any
successor body) as from time to time in effect and any successor to all or a
portion thereof.
-18-
"REIT" means a real estate investment trust as defined in Sections
856-860 of the Code.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the notice requirement has been
waived by regulation.
"REQUIRED LENDERS" means, at any time, the Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes at least 50.1% of the
Credit Exposure of all Lenders at such time; provided, however, so long as Bear
▇▇▇▇▇▇▇ Corporate Lending Inc. and JPMorgan Chase Bank constitute, in the
aggregate, 50.1% or more of the Credit Exposure of all Lenders at such time, the
vote of both such Lenders shall be required for all voting matters which require
the consent of the "Required Lenders"; provided further, however, that if any
Lender shall be a Defaulting Lender at such time then there shall be excluded
from the determination of Required Lenders the aggregate principal amount of
Credit Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean (a) at
any time prior to the Effective Date, the Commitment of such Lender and (b) at
any time after the Effective Date, the principal balance of the outstanding Term
Loans of such Lender.
"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or final,
non-appealable determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its material property is subject.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"SECURED DEBT" means all Funded Debt of the Combined Parties that is
subject to a Lien in favor of the creditor holding such Funded Debt; provided
that any Funded Debt owed to the Lenders hereunder shall be considered to be
Unsecured Debt even if a Lien has been granted in favor of the Lenders.
"SECURED DEBT RATIO" means the ratio of (a) Secured Debt to (b)
Property Value plus, to the extent Secured Debt includes Funded Debt on
Construction-in-Process, total construction costs incurred as of such date with
respect to such Construction-in-Process.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
modified, succeeded or replaced from time to time, and the rules and regulations
promulgated thereunder.
"SINGLE EMPLOYER PLAN" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"SOLVENT" means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (b) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person's assets would constitute
unreasonably small capital after giving due consideration to the
-19-
prevailing practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the assets of such Person is greater than the
total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair saleable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"STEP-BACK DATE" has the meaning set forth in Section 7.2(d).
"SUBSIDIARY" means, as to any Person, (a) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of stock of
such corporation shall have or might have voting power by reason of the lapse of
time or the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture, limited liability company, trust or other entity in
which such Person directly or indirectly through Subsidiaries has more than a
50% equity interest or 50% Capital Percentage at any time.
"TARGET" means The ▇▇▇▇▇▇▇▇▇▇ Company, L.P., a Delaware limited
partnership.
"TERM LOAN COMMITMENT PERCENTAGE" means, for each Lender, the
percentage identified as its Term Loan Commitment Percentage on Schedule 1.1(a),
as such percentage may be modified in connection with any assignment made by
such Lender in accordance with the provisions of Section 11.3.
"TERM LOAN COMMITTED AMOUNT" means $320,000,000.
"TERM LOANS" has the meaning set forth in Section 2.1(a).
"TERM NOTE" or "TERM NOTES" means a promissory note of the Borrowers
payable to any Lender, in the form of Exhibit 2.1(c) hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting
from outstanding Term Loans, and also means all other promissory notes accepted
from time to time in substitution therefore or renewal thereof.
"TERMINATION EVENT" means (a) with respect to any Single Employer Plan,
the occurrence of a Reportable Event or the substantial cessation of operations
(within the meaning of Section 4062(e) of ERISA); (b) the withdrawal of any
Credit Party or any of its Subsidiaries or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (c) the distribution of a notice of intent to terminate
or the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of
ERISA; (d) the institution of proceedings to terminate or the actual termination
of a Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition
which might reasonably constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; or (f)
the complete or partial withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
-20-
"TOTAL ASSET VALUE" has the meaning assigned to such term in the
definition of Leverage Ratio.
"UNENCUMBERED CASH FLOW RATIO" means the ratio of (a) Annualized
Modified Adjusted NOI with respect to Unencumbered Properties to (b) Market
Funded Debt Payments.
"UNENCUMBERED CONSTRUCTION-IN-PROCESS" means all
Construction-in-Process that is (i) wholly-owned by a Credit Party that is a
wholly-owned Subsidiary of the Borrowers, (ii) not subject to a Lien other than
(a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to
secure the Obligations, and (iii) not subject to a significant environmental
release, Environmental Claim or other violation of Environmental Laws.
"UNENCUMBERED CONSTRUCTION-IN-PROCESS AND ELIGIBLE LAND VALUE" means
the sum of Unencumbered Construction-in-Process and Unencumbered Eligible Land,
in each case valued at the lower of cost or market.
"UNENCUMBERED ELIGIBLE LAND" means all Eligible Land that is (i)
wholly-owned by a Credit Party that is a wholly-owned Subsidiary of the
Borrowers, (ii) not subject to a Lien other than (a) nonconsensual Permitted
Liens and (b) Liens in favor of the Lenders to secure the Obligations, and (iii)
not subject to a significant environmental release, Environmental Claim or other
violation of Environmental Laws.
"UNENCUMBERED PROPERTIES" means all Properties that are (i)
wholly-owned or leased under an Eligible Ground Lease by a Credit Party that is
a wholly-owned Subsidiary of the Borrowers, (ii) not subject to a Lien other
than (a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to
secure the Obligations, (iii) improved with a building that has received a
certificate of occupancy, and (iv) not subject to a significant environmental
release, Environmental Claim or other violation of Environmental Laws.
"UNENCUMBERED PROPERTY VALUE" means the sum of (i) Property Value with
respect to all Unencumbered Properties, plus (ii) the aggregate amount of
unrestricted cash and Cash Equivalents in excess of $25,000,000; provided that
from the Closing Date until October 1, 2005, Unencumbered Property Value shall
be calculated by using the value at cost of the Pre-Stabilized Acquisition
Properties (so long as such Properties constitute Unencumbered Properties)
instead of the Property Value of the Pre-Stabilized Acquisition Properties.
"UNSECURED DEBT" means the sum of all Funded Debt of the Combined
Parties that was incurred, and continues to be outstanding, without granting a
Lien to the creditor holding such Funded Debt; provided that all Funded Debt of
the Combined Parties owing to the Lenders under this Credit Agreement shall be
considered to be Unsecured Debt even if a Lien has been granted in favor of the
Lenders.
"UNSECURED SENIOR DEBT RATING" means either (a) if BRT or BOP has
issued unsecured, senior, long term, non-credit enhanced debt, the debt rating
provided by S&P, Moody's or Fitch with respect to such unsecured, senior, long
term, non-credit enhanced debt, or (b) if BRT or BOP has not issued unsecured,
senior, long term, non-credit enhanced debt, the issuer rating for BRT or BOP
provided by Moody's or Fitch or the corporate credit rating for BRT or BOP
provided by S&P.
-21-
1.2. COMPUTATION OF TIME PERIODS AND OTHER DEFINITION PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
References in this Credit Agreement to "during the term of this Credit
Agreement" shall mean the period from the Effective Date to the earlier of the
Maturity Date or the acceleration of the Loans pursuant to Section 9.2.
1.3. ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All financial statements delivered to the Lenders hereunder shall be
accompanied by a statement from the Borrowers that GAAP has not changed since
the most recent financial statements delivered by the Borrowers to the Lenders
or, if GAAP has changed, describing such changes in detail and explaining how
such changes affect the financial statements. All calculations made for the
purposes of determining compliance with this Credit Agreement shall (except as
otherwise expressly provided herein) be made by application of GAAP applied on a
basis consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 7.1 (or, prior to the delivery of the first
financial statements pursuant to Section 7.1, consistent with the financial
statements described in Section 5.1(f)); provided, however, if (a) the Borrowers
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within sixty (60) days after delivery of such
financial statements (or after the Lenders have been informed of the change in
GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Borrowers to the Lenders as to which no such objection shall
have been made.
1.4. JOINT VENTURE INVESTMENTS.
For purposes of calculating the financial covenants in Section 7.2
(including the definitions used therein) and the definition of Permitted
Investments, (a) NOI, Adjusted NOI, Annualized Modified Adjusted NOI, Property
Value and Interest Expense shall be calculated, to the extent applicable, to
include the pro-rata share (as determined by their respective percentage
interests in the profits and losses of such joint venture) of results
attributable to the Credit Parties and their Subsidiaries from joint ventures
and (b) Indebtedness and Funded Debt shall be calculated as follows: (i) if the
Indebtedness of a joint venture is recourse to such Credit Party (or
Subsidiary), then the amount of such Indebtedness or Funded Debt that is
recourse to such Credit Party (or Subsidiary), without duplication, and (ii) if
the Indebtedness of such joint venture is not recourse
-22-
to such Credit Party (or Subsidiary), then such Credit Party's (or Subsidiary's)
pro-rata share of such Indebtedness or Funded Debt as determined by its
percentage interest in the profits and losses of such joint venture. For
purposes of this Section 1.4, Indebtedness of a joint venture that is recourse
to a Credit Party or one of its Subsidiaries solely as a result of such Credit
Party (or Subsidiary) being a partner or member in such joint venture shall be
treated as not recourse to such Credit Party (or Subsidiary) as long as the only
assets owned by such Credit Party (or Subsidiary) are its equity interest in
such joint venture and any contributed capital held to fund such equity
interest.
SECTION 2
CREDIT FACILITY
2.1. TERM LOANS.
(a) Term Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees, on the Effective Date, to make a term loan
(collectively, the "Term Loans") to the Borrowers, in Dollars, in an amount
equal to such Lender's Term Loan Commitment Percentage of the aggregate amount
of Term Loans requested by the Borrowers to be made on such date; provided that
(i) the aggregate amount of Term Loans made may not exceed the Term Loan
Committed Amount and (ii) the Term Loans shall only be made in a single funding.
By no later than 11:00 a.m. on the Effective Date, and in no event later than
11:00 a.m. on October 21, 2004, the Borrowers shall submit an irrevocable
written Notice of Borrowing in the form of Exhibit 2.1(a) to the Administrative
Agent setting forth (A) the amount requested, (B) the specific use of the
proceeds of the requested Term Loans, (C) a certification that the Borrowers
have complied in all respects with Section 5.1 and (D) the date of borrowing.
The Administrative Agent shall provide copies of such Notice of Borrowing to
each Lender. The Commitments shall permanently terminate upon the making of the
Term Loans.
(b) Funding of Term Loans. On the Effective Date, each Lender will make
its Term Loan Commitment Percentage of the aggregate amount of Term Loans
requested by the Borrowers available to the Administrative Agent by deposit, in
Dollars and in immediately available funds, at the Administrative Agent's office
at the Agency Services Address or at such other address as the Administrative
Agent may designate in writing. The amount of the Term Loans will then be made
available to the Borrowers by the Administrative Agent by crediting the account
of the Borrowers on the books of such office of the Administrative Agent, to the
extent the amount of such Term Loans are made available to the Administrative
Agent. All Term Loans made on the Effective Date shall be Base Rate Loans.
Thereafter, all or any portion of the Term Loans may be converted into
Eurodollar Loans in accordance with the terms of Section 2.1(d) and the
definition of "Interest Period" set forth in Section 1.1.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make a Term Loan hereunder; provided, however, that
the failure of any Lender to fulfill its obligations hereunder shall not relieve
any other Lender of its obligations hereunder. Unless the Administrative Agent
shall have been notified by any Lender prior to the date of the Term Loans that
such Lender does not intend to make available to the Administrative Agent its
portion of the Term Loans to be made on such date, the Administrative Agent may
assume that such Lender has
-23-
or will make the amount of its Term Loan available to the Administrative Agent
on the Effective Date, and the Administrative Agent in reliance upon such
assumption, may (in its sole discretion but without any obligation to do so)
make available to the Borrowers a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such corresponding amount from
such Lender. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrowers, and the Borrowers shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent shall
also be entitled to recover from such Lender or the Borrowers, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrowers to the date such corresponding amount is recovered by the
Administrative Agent at a per annum rate equal to (i) from the Borrowers at the
Adjusted Base Rate and (ii) from such Lender at the Federal Funds Rate if paid
within two Business Days of the date of drawing and thereafter at a rate equal
to the Base Rate.
(c) Term Notes. Upon the request of any Lender, the Borrowers shall
provide such Lender with a duly executed Term Note, evidencing the Term Loans
made by such Lender, in an original principal amount equal to such Lender's Term
Loan Commitment Percentage of the aggregate amount of the Term Loans requested
by the Borrowers to be made on such date and substantially in the form of
Exhibit 2.1(c).
(d) Continuations and Conversions. The Borrowers shall have the option
with respect to all or any part of the Term Loans, on any Business Day, to
continue existing Eurodollar Loans for a subsequent Interest Period, to convert
Base Rate Loans into Eurodollar Loans, or to convert Eurodollar Loans into Base
Rate Loans; provided, however, that (i) each such continuation or conversion
must be requested by the Borrowers pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.1(d), in compliance with the
terms set forth below, (ii) except as provided in Section 3.11, Eurodollar Loans
may only be continued or converted on the last day of the Interest Period
applicable thereto, (iii) Eurodollar Loans may not be continued nor may Base
Rate Loans be converted into Eurodollar Loans during the existence and
continuation of a Default or Event of Default and (iv) any request to continue a
Eurodollar Loan that fails to comply with the terms hereof or any failure to
request a continuation of a Eurodollar Loan at the end of an Interest Period
shall result in a conversion of such Eurodollar Loan to a Base Rate Loan on the
last day of the applicable Interest Period. Each continuation or conversion must
be requested by the Borrowers no later than 11:00 a.m. (A) one Business Day
prior to the date for a requested conversion of a Eurodollar Loan to a Base Rate
Loan or (B) three Business Days prior to the date for a requested continuation
of a Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in
each case pursuant to a written Notice of Continuation/Conversion submitted to
the Administrative Agent (which shall promptly notify each of the Lenders) which
shall set forth (x) whether the Borrowers wish to continue or convert such Loans
and (y) if the request is to continue a Eurodollar Loan or convert a Loan to a
Eurodollar Loan, the Interest Period applicable thereto.
(e) Minimum Amounts/Restrictions on Loans. Each request for a
conversion or continuation of a Term Loan shall be subject to the requirements
that (i) each Eurodollar Loan shall be in a minimum amount of $1,000,000 and in
integral multiples of $100,000 in excess
-24-
thereof, (ii) each Base Rate Loan shall be in a minimum amount of $500,000 and
(iii) no more than four Eurodollar Loans shall be outstanding at any one time.
For the purposes of this Section 2.1(e), all Eurodollar Loans with the same
Interest Periods beginning on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin or end on the same date, shall be considered as separate Eurodollar
Loans.
2.2. JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by the
Lenders under this Credit Agreement, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the undertakings of
each of the Borrowers to accept joint and several liability for the obligations
of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other Borrower with respect to the payment and
performance of all of the Obligations arising under this Credit Agreement and
the other Credit Documents, it being the intention of the parties hereto that
all the Obligations shall be the joint and several obligations of each of the
Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to
make any payment with respect to any of the Obligations as and when due or to
perform any of the Obligations in accordance with the terms thereof, then in
each such event, the other Borrower will make such payment with respect to, or
perform, such Obligation.
(d) The obligations of each Borrower under the provisions of this
Section 2.2 constitute full recourse obligations of such Borrower, enforceable
against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the extent
permitted by law, each Borrower hereby waives notice of acceptance of its joint
and several liability, notice of occurrence of any Default or Event of Default
(except to the extent notice is expressly required to be given pursuant to the
terms of this Credit Agreement), or of any demand for any payment under this
Credit Agreement, notice of any action at any time taken or omitted by the
Administrative Agent or the Lenders under or in respect of any of the
obligations hereunder, any requirement of diligence and, generally, all demands,
notices and other formalities of every kind in connection with this Credit
Agreement. Each Borrower hereby assents to, and waives notice of, any extension
or postponement of the time for the payment of any of the Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other action
or acquiescence by the Administrative Agent or the Lenders at any time or times
in respect of any default by either Borrower in the performance or satisfaction
of any term, covenant, condition or provision of this Credit Agreement, any and
all other indulgences whatsoever by the Administrative Agent or the Lenders in
respect of any of the obligations hereunder, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of such obligations or the addition, substitution or release,
in whole or in part, of either Borrower. Without limiting the generality of the
foregoing, each Borrower assents to any other action or delay in acting or any
failure to act on the part of the
-25-
Administrative Agent or the Lenders, including, without limitation, any failure
strictly or diligently to assert any right or to pursue any remedy or to comply
fully with applicable laws or regulations thereunder which might, but for the
provisions of this Section 2.2, afford grounds for terminating, discharging or
relieving such Borrower, in whole or in part, from any of its obligations under
this Section 2.2, it being the intention of each Borrower that, so long as any
of the Obligations hereunder remain unsatisfied, the obligations of such
Borrower under this Section 2.2 shall not be discharged except by performance
and then only to the extent of such performance. The obligations of each
Borrower under this Section 2.2 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation,
reconstruction or similar proceeding with respect to either Borrower or a
Lender. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of either Borrower or any of the Lenders.
(f) The provisions of this Section 2.2 are made for the benefit of the
Lenders and their successors and assigns, and may be enforced by them from time
to time against either of the Borrowers as often as occasion therefor may arise
and without requirement on the part of the Lenders first to marshal any of its
claims or to exercise any of its rights against the other Borrower or to exhaust
any remedies available to it against the other Borrower or to resort to any
other source or means of obtaining payment of any of the Obligations hereunder
or to elect any other remedy. The provisions of this Section 2.2 shall remain in
effect until all the Obligations shall have been paid in full or otherwise fully
satisfied. If at any time, any payment, or any part thereof, made in respect of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Lenders upon the insolvency, bankruptcy or reorganization of either of the
Borrowers, or otherwise, the provisions of this Section 2.2 will forthwith be
reinstated and in effect as though such payment had not been made.
(g) Notwithstanding any provision to the contrary contained herein or
in any of the other Credit Documents, to the extent the obligations of either
Borrower shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Borrower hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
2.3. APPOINTMENT OF BOP.
BRT hereby appoints BOP to act as its agent for all purposes under this
Credit Agreement (including, without limitation, with respect to all matters
related to the borrowing and repayment of Loans) and agrees that (i) BOP may
execute such documents on behalf of BRT as BOP deems appropriate in its sole
discretion and BRT shall be obligated by all of the terms of any such document
executed on its behalf, (ii) any notice or communication delivered by the
Administrative Agent or the Lender to BOP shall be deemed delivered to BRT and
(iii) the Administrative Agent or the Lenders may accept, and be permitted to
rely on, any document, instrument or agreement executed by BOP on behalf of BRT.
-26-
2.4. NON-RECOURSE.
Notwithstanding anything herein to the contrary, no recourse shall be
had against Brandywine Realty Services Partnership or any past, present or
future shareholder, officer, director or trustee of BRT for any obligation of
the Credit Parties under the Credit Documents, or for any claim based thereon or
otherwise in respect thereof; provided, however, that this Section 2.4 shall not
restrict or limit any claim against any such Person arising out of or occurring
with respect to fraud or any intentional misrepresentation or any act or
omission that is willful or wanton or constitutes gross negligence or willful
misconduct.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS
3.1. INTEREST.
(a) Interest Rate. All Base Rate Loans shall accrue interest at the
Adjusted Base Rate. All Eurodollar Loans shall accrue interest at the Adjusted
Eurodollar Rate.
(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default as set forth in Section 9.1(a), the
principal of and, to the extent permitted by law, interest on the Loans and any
other amounts owing hereunder or under the other Credit Documents (including
without limitation fees and expenses) shall bear interest, payable on demand, at
a per annum rate equal to four percent (4%) plus the rate which would otherwise
be applicable (or if no rate is applicable, then the rate for Base Rate Loans
plus four percent (4%) per annum); provided that unless the Loans have been
accelerated, interest, including the default rate of interest, shall only be due
and payable on the Interest Payment Dates.
(c) Interest Payments. Interest on Loans shall be due and payable in
arrears on each Interest Payment Date. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed to
be the succeeding Business Day, except that in the case of Eurodollar Loans
where the succeeding Business Day falls in the succeeding calendar month, such
Interest Payment Date shall be the preceding Business Day.
3.2. PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Borrower under this Credit Agreement shall be made by such
Borrower unconditionally and without deduction for any counterclaim, defense,
recoupment or setoff and received not later than 2:00 p.m. on the date when due,
in Dollars and in immediately available funds, to the Administrative Agent at
its offices in New York City, New York. Payments received after such time shall
be deemed to have been received on the next Business Day. The Borrowers shall,
at the time they make any payment under this Credit Agreement, specify to the
Administrative Agent, the Loans, fees or other amounts payable by the Borrowers
hereunder to which such payment is to be applied (and in the event that they
fail to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall, subject to Section 3.7, distribute such
payment to the Lenders in such manner as the Administrative Agent may deem
appropriate). The Administrative Agent will distribute any such payment to the
Lenders on the day received if such
-27-
payment is received prior to 2:00 p.m.; otherwise the Administrative Agent will
distribute such payment to the Lenders on the next succeeding Business Day.
Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and fees for the period of such
extension), except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day.
3.3. PAYMENTS.
(a) Voluntary Prepayments. The Borrowers shall have the right to prepay
Term Loans, in whole or in part from time to time without premium or penalty;
provided, however, that (i) Eurodollar Loans may only be prepaid on three
Business Days' prior written notice to the Administrative Agent and any
prepayment of Eurodollar Loans will be subject to Section 3.13, (ii) (x) in the
case of Eurodollar Loans, each such partial prepayment shall be in the minimum
principal amount of $1,000,000 and integral multiples of $100,000 in excess
thereof, or (y) in the case of Base Rate Loans, each such partial prepayment
shall be in the minimum principal amount of $500,000 and integral multiples of
$100,000 in excess thereof.
(b) Mandatory Prepayments.
(i) In the event one or more Capital Markets Transactions
consisting of the issuance of equity (including pursuant to any
over-allotment of shares granted to the underwriters of any such equity
offering) is consummated after the date hereof, 100% of the net
proceeds therefrom shall be applied by the Borrowers to permanently
reduce the Term Loans outstanding.
(ii) In the event one or more Capital Markets Transactions
consisting of the issuance of publicly registered (144A or otherwise)
debt securities or any secured or unsecured debt financings (other than
pursuant to a refinancing of existing indebtedness of the Borrowers but
including any proceeds in excess of such amount being refinanced) are
consummated, 100% of the net proceeds therefrom shall be applied by the
Borrowers to permanently reduce the Term Loans outstanding.
(iii) In the event one or more Capital Markets Transactions
consisting of the issuance of privately placed, non-144A or 144A (with
no registration rights) debt securities is consummated in excess of
$113 million, 100% of the net proceeds in excess of such $113 million
shall be applied by the Borrowers to permanently reduce the Term Loans
outstanding.
(c) Application of Prepayments. All amounts required to be paid
pursuant to Section 3.3(b) shall be applied first to Base Rate Loans and then to
Eurodollar Loans. Amounts prepaid on account of Term Loans may not be
reborrowed. All prepayments hereunder shall be subject to Section 3.13.
-28-
3.4. FEES.
(a) Administrative Fees. The Borrowers agree to pay to the
Administrative Agent, for its own account, an annual fee as agreed to between
the Borrowers and the Administrative Agent in the Fee Letter.
3.5. PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Term Loans, together with accrued but unpaid interest and all other sums owing
with respect thereto, shall be due and payable in cash in full, unless
accelerated sooner pursuant to Section 9.2.
3.6. COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans bearing interest based on the Prime
Rate, which shall be calculated on the basis of a 365 or 366 day year as the
case may be, all computations of interest and fees hereunder shall be made on
the basis of the actual number of days elapsed over a year of 360 days. Interest
shall accrue from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to conform
to and contract in strict compliance with applicable usury law from time to time
in effect. All agreements between the Lenders and the Credit Parties are hereby
limited by the provisions of this paragraph which shall override and control all
such agreements, whether now existing or hereafter arising and whether written
or oral. In no way, nor in any event or contingency (including but not limited
to prepayment or acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of any of
the Credit Documents or any other document, interest would otherwise be payable
in excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such interest shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which would,
apart from this provision, be in excess of the maximum lawful amount, an amount
equal to the amount which would have been excessive interest shall, without
penalty, be applied to the reduction of the principal amount owing on the Loans
and not to the payment of interest, or refunded to the Credit Parties or the
other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to demand
payment of the Loans or any other indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which has not
otherwise accrued on the date of such demand, and the Lenders do not intend to
charge or receive any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with respect to the Loans
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal or
extension) of the Loans so that the amount of interest on account of such
indebtedness does not exceed the maximum nonusurious amount permitted by
applicable law.
-29-
3.7. PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Term Loan borrowing, each payment or prepayment of
principal of any Term Loan, each payment of fees (other than administrative fees
payable pursuant to Section 3.4), and each conversion or continuation of any
Term Loan, shall (except as otherwise provided in Section 3.10) be allocated pro
rata among the Lenders in accordance with the respective Term Loan Commitment
Percentages of the Lenders (or, if the Commitments of the Lenders have expired
or been terminated, in accordance with the respective principal amounts of the
outstanding Loans of the Lenders); provided that, if any Lender shall have
failed to pay its applicable pro rata share of any Term Loan, then any amount to
which such Lender would otherwise be entitled pursuant to this Section 3.7 shall
instead be payable to the Administrative Agent until the share of such Loan not
funded by such Lender has been repaid; provided further, that in the event any
amount paid to any Lender pursuant to this Section 3.7 is rescinded or must
otherwise be returned by the Administrative Agent, each Lender shall, upon the
request of the Administrative Agent, repay to the Administrative Agent the
amount so paid to such Lender, with interest for the period commencing on the
date such payment is returned by the Administrative Agent until the date the
Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate, and thereafter, at the Base Rate plus two
percent (2%) per annum.
(b) Sharing of Payments. The Lenders agree among themselves that,
except to the extent otherwise provided herein, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of the Bankruptcy Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means
(other than in connection with an assignment pursuant to Section 3.14 or Section
11.3), in excess of its pro rata share of such payment as provided for in this
Credit Agreement, such Lender shall promptly pay in cash or purchase from the
other Lenders a participation in such Loans and other obligations in such
amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Lenders share such payment in accordance with
their respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained by
such Lender through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise be
restored, each Lender which shall have shared the benefit of such payment shall,
by payment in cash or a repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Credit Parties agree that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender shall fail
to remit to the Administrative Agent or any other Lender an amount payable by
such Lender to the Administrative Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments
-30-
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Administrative Agent or
such other Lender at a rate per annum equal to the Federal Funds Rate. If under
any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.7 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.7 to share in the benefits of any recovery on such secured claim.
3.8. CAPITAL ADEQUACY.
If, after the date hereof, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender, or its parent corporation, with 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 such Lender's (or parent corporation's)
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender, or its parent corporation, could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's (or parent corporation's) policies with respect to
capital adequacy), then, upon notice from such Lender to the Borrowers and the
Administrative Agent, the Borrowers shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender (or parent
corporation) on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such reduction.
Each determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto. This
covenant shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.9. INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Adjusted Eurodollar Rate or the Eurodollar Rate for such
Interest Period, the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrowers and the Lenders as soon as practicable
thereafter, and will also give prompt written notice to the Borrowers and the
Lenders when such conditions no longer exist. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans and (b) any Loans that were to have been
converted on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as Base Rate Loans. Until such notice
has been withdrawn by the Administrative Agent, no further Eurodollar Loans
shall be made or continued as such, nor shall the Borrowers have the right to
convert Base Rate Loans to Eurodollar Loans.
-31-
3.10. ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrowers
and the Administrative Agent (which notice shall be promptly withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Lender hereunder
to make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base
Rate Loan to Eurodollar Loans shall forthwith be cancelled and, until such time
as it shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrowers shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.13;
provided that no such payments shall be required if the conversion of a
Eurodollar Loan occurs within 30 days of the last day of the Interest Period of
such Eurodollar Loan.
3.11. REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever with
respect to any Eurodollar Loans made by it, or its obligation to make Eurodollar
Loans, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 3.12 (including
Non-Excluded Taxes imposed solely by reason of any failure of such Lender to
comply with its obligations (if any) under Section 3.12(b)) and changes in taxes
measured by or imposed upon the overall net income, or franchise tax (imposed in
lieu of such net income tax), of such Lender or its applicable lending office,
branch, or any Affiliate thereof);
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the Adjusted
Eurodollar Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any tax
of any kind whatsoever);
-32-
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Loans or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, upon notice to the Borrowers from such
Lender, through the Administrative Agent, in accordance herewith, the Borrowers
shall be obligated to promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender on an after-tax basis (after taking
into account applicable deductions and credits in respect of the amount
indemnified) for such increased cost or reduced amount receivable, provided
that, in any such case, the Borrowers may elect to convert the Eurodollar Loans
made by such Lender hereunder to Base Rate Loans by giving the Administrative
Agent at least one Business Day's notice of such election, in which case the
Borrowers shall promptly pay to such Lender, upon demand, without duplication,
such amounts, if any, as may be required pursuant to Section 3.13. If any Lender
becomes entitled to claim any additional amounts pursuant to this Section 3.11,
it shall provide prompt notice thereof to the Borrowers, through the
Administrative Agent, certifying (x) that one of the events described in this
Section 3.11 has occurred and describing in reasonable detail the nature of such
event, (y) as to the increased cost or reduced amount resulting from such event
and (z) as to the additional amount demanded by such Lender and a reasonably
detailed explanation of the calculation thereof. Such a certificate as to any
additional amounts payable pursuant to this Section 3.11 submitted by such
Lender, through the Administrative Agent, to the Borrowers shall be conclusive
and binding on the parties hereto in the absence of manifest error. This
covenant shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.12. TAXES.
(a) Except as provided below in this Section 3.12, all payments made by
the Borrowers under this Credit Agreement and any Notes shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or Affiliate thereof,
and all franchise taxes, branch taxes, taxes on doing business or taxes on the
overall capital or net worth of any Lender or its applicable lending office, or
any branch or Affiliate thereof, in each case imposed in lieu of net income
taxes: (i) by the jurisdiction under the laws of which such Lender, applicable
lending office, branch or Affiliate is organized or is located, or in which its
principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and such Lender,
applicable lending office, branch or Affiliate other than a connection arising
solely from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Notes. If
any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder or under any
Notes, (a) the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest on any such
other amounts payable hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes, provided, however, that the Borrowers shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be required
to increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof if such Lender fails
to comply with the requirements of paragraph (b) of
-33-
this Section 3.12 whenever any Non-Excluded Taxes are payable by the Borrowers,
and (b) as promptly as possible after request therefor the Borrowers shall send
to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrowers showing payment thereof. If the Borrowers fail to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fail to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Administrative Agent and
any Lender for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) (A) on or before the date of any payment by the Borrowers
under this Credit Agreement or Notes to such Lender, deliver to the
Borrowers and the Administrative Agent (x) two duly completed copies of
United States Internal Revenue Service Form W8-BEN or W8-ECI, or
successor applicable form, as the case may be, certifying that it is
entitled to receive payments under this Credit Agreement and any Notes
without deduction or withholding of any United States federal income
taxes and (y) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be, certifying that it is entitled to
an exemption from United States backup withholding tax;
(B) deliver to the Borrowers and the Administrative
Agent two further copies of any such form or certification on
or before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrowers; and
(C) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably be
requested by the Borrowers or the Administrative Agent; or
(ii) in the case of any such Lender that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, such Lender shall (a) represent to the Borrowers (for the benefit
of the Borrowers and the Administrative Agent) that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (b) furnish to the Borrowers, on or before the date of any
payment by the Borrowers, with a copy to the Administrative Agent, two
accurate and complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form certifying to such
Lender's legal entitlement at the date of such certificate to an
exemption from U.S. withholding tax under the provisions of Section
881(c) of the Internal Revenue Code with respect to payments to be made
under this Credit Agreement and any Notes (and to deliver to the
Borrowers and the Administrative Agent two further copies of such form
on or before the date it expires or becomes obsolete and after
-34-
the occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrowers or
the Administrative Agent for filing and completing such
forms), and (c) agree, to the extent legally entitled to do
so, upon reasonable request by the Borrowers, to provide to
the Borrowers (for the benefit of the Borrowers and the
Administrative Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to
payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the Borrowers and the Administrative
Agent then such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a Lender pursuant
to Section 11.3 shall, upon the effectiveness of the related transfer,
and if applicable, be required to provide all of the forms,
certifications and statements required pursuant to this subsection (b);
provided that in the case of a participant of a Lender, the obligations
of such participant of a Lender pursuant to this subsection (b) shall
be determined as if such participant of a Lender were a Lender except
that such participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.13. COMPENSATION.
The Borrowers promise to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrowers in making a borrowing of, conversion
into or continuation of Eurodollar Loans, after the Borrowers have given a
notice requesting the same in accordance with the provisions of this Credit
Agreement, (b) default by the Borrowers in making any prepayment of a Eurodollar
Loan after the Borrowers have given a notice thereof in accordance with the
provisions of this Credit Agreement and (c) any continuation, conversion,
payment or prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto. Such indemnification shall be
calculated by the Administrative Agent and shall include, without limitation, an
amount equal to (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein minus (ii) the amount of
interest which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurodollar market. The agreements in this Section 3.13 shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder. Notwithstanding the foregoing, any prepayment of a
Eurodollar Loan made hereunder (as a result of a mandatory requirement of this
Credit Agreement) within thirty (30) days of the end of the Interest Period with
respect to such Eurodollar Loan, shall not be subject to this Section 3.13.
-35-
3.14. MITIGATION; MANDATORY ASSIGNMENT.
Each Lender shall use reasonable efforts to avoid or mitigate any
increased cost or suspension of the availability of an interest rate under
Sections 3.8 through 3.13 inclusive to the greatest extent practicable
(including transferring the Loans to another lending office or one of its
Affiliates) unless, in the opinion of such Lender, such efforts would be likely
to have an adverse effect upon it. In the event a Lender makes a request to the
Borrowers for additional payments in accordance with Section 3.8, 3.9, 3.10,
3.11, 3.12 or 3.13 or a Lender becomes a Defaulting Lender, then, provided that
no Default or Event of Default has occurred and is continuing at such time, the
Borrowers may, at their own expense (such expense to include any transfer fee
payable to the Administrative Agent under Section 11.3(b) and any expense
pursuant to Section 3.13), and in their sole discretion, require such Lender to
transfer and assign in whole (but not in part), without recourse (in accordance
with and subject to the terms and conditions of Section 11.3(b)), all of its
interests, rights and obligations under this Credit Agreement to an Eligible
Assignee which shall assume such assigned obligations (which Eligible Assignee
may be another Lender, if a Lender accepts such assignment); provided that (a)
such assignment shall not conflict with any law, rule or regulation or order of
any court or other Governmental Authority and (b) the Borrowers or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the portion of
the Loans hereunder held by such assigning Lender and all other amounts owed to
such assigning Lender hereunder, including amounts owed pursuant to Sections 3.8
through 3.13. Notwithstanding such assignment, and without limiting any other
provision of this Credit Agreement, such assigning Lender shall continue to
benefit from the provisions of Sections 3.8, 3.11, 3.12 and 11.5 with respect to
the period before the effectiveness of such assignment.
SECTION 4
GUARANTY
4.1. GUARANTY OF PAYMENT.
Subject to Section 4.7, each of the Guarantors hereby, jointly and
severally, absolutely, irrevocably and unconditionally guarantees to each Lender
the prompt payment of the Obligations in cash in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise). This
Guaranty is a guaranty of payment and not of collection and is a continuing
guaranty and shall apply to all Obligations whenever arising.
4.2. OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute, irrevocable
and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Credit Documents or any other agreement or
instrument referred to therein, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor agrees that this Guaranty may be enforced by the Lenders without
the necessity at any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having recourse to the Notes
or any other of the Credit Documents or any collateral, if any, hereafter
-36-
securing the Obligations or otherwise and each Guarantor hereby waives the right
to require the Lenders to proceed against the Borrowers or any other Person
(including a co-guarantor) or to require the Lenders to pursue any other remedy
or enforce any other right. Each Guarantor further agrees that it shall have no
right of subrogation, indemnity, reimbursement or contribution against the
Borrowers or any other Guarantor of the Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under this Credit Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents.
Each Guarantor further agrees that nothing contained herein shall prevent the
Lenders from suing on the Notes or any of the other Credit Documents or
foreclosing any security interest in or Lien on any collateral, if any, securing
the Obligations or from exercising any other rights available to any of them
under this Credit Agreement, the Notes, any of the other Credit Documents, or
any other instrument of security, if any, and the exercise of any of the
aforesaid rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any of any Guarantor's obligations hereunder; it being
the purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent, irrevocable and unconditional under any and all
circumstances. Neither any Guarantor's obligations under this Guaranty nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Borrowers or by reason of the
bankruptcy or insolvency of the Borrowers. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance of by the Administrative Agent or any Lender
upon this Guaranty or acceptance of this Guaranty. The Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Guaranty. All
dealings between the Borrowers and any of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty. The Guarantors further agree to all rights of set-off as set forth in
Section 11.2.
4.3. MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Obligations, if any, may be exchanged, compromised or
surrendered from time to time; (b) the Lenders shall not have any obligation to
protect, perfect, secure or insure any such security interests, liens or
encumbrances now or hereafter held, if any, for the Obligations or the
properties subject thereto; (c) the time or place of payment of the Obligations
may be changed or extended, in whole or in part, to a time certain or otherwise,
and may be renewed or accelerated, in whole or in part; (d) the Borrowers and
any other party liable for payment under the Credit Documents may be granted
indulgences generally; (e) any of the provisions of the Notes or any of the
other Credit Documents may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Borrowers or any other party liable for the payment of the Obligations or liable
upon any security therefor may be released, in whole or in part, at, before or
after the stated, extended or accelerated maturity of the Obligations, all
without notice to or further assent by such Guarantor, which shall remain bound
thereon, notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, indulgence or release.
-37-
4.4. WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrowers by the Lenders; (b) presentment and
demand for payment or performance of any of the Obligations; (c) protest and
notice of dishonor or of default (except as specifically required in this Credit
Agreement) with respect to the Obligations or with respect to any security
therefor; (d) notice of the Lenders obtaining, amending, substituting for,
releasing, waiving or modifying any security interest, lien or encumbrance, if
any, hereafter securing the Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; (e) all other notices to which such Guarantor might
otherwise be entitled; and (f) the benefit of any laws that exonerate or limit
the liability of guarantors or sureties, and any defenses provided by these
laws.
4.5. REINSTATEMENT.
The obligations of the Guarantors under this Guaranty shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
4.6. REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Obligations
from becoming automatically due and payable) as against any other Person and
that, in the event of such declaration (or such Obligations being deemed to have
become automatically due and payable), such Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the
Guarantors.
4.7. LIMITATION OF GUARANTY.
It is the intention and agreement of the Guarantors, the Administrative
Agent and the Lenders that the obligations of each Guarantor hereunder shall be
valid and enforceable against each Guarantor to the maximum extent permitted by
applicable law. Notwithstanding any provision to the contrary contained herein
or in any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated or declared to be invalid or unenforceable for
any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the
obligations of such Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
-38-
4.8. RIGHTS OF CONTRIBUTION.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to the
obligations of the Credit Parties under the Credit Documents and no Credit Party
shall exercise such rights of contribution until all the Obligations have been
paid in full and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1. CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the Term Loans is subject to satisfaction of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative Agent of
duly executed copies of: (i) this Credit Agreement; (ii) the Notes; and (iii)
all other Credit Documents required to be delivered on or before the Effective
Date, each in form and substance reasonably acceptable to the Administrative
Agent in its sole discretion.
(b) Partnership Documents. With respect to each Credit Party that is a
partnership, receipt by the Administrative Agent of the following:
(i) Partnership Agreements. Certified copies of the
partnership agreement of such Credit Party, together with all
amendments thereto.
(ii) Certificates of Good Standing or Existence. A certificate
of good standing or existence for such Credit Party issued as of a
recent date by its state of organization and each other state where the
failure to qualify or be in good standing could have a Material Adverse
Effect.
(c) Corporate Documents. With respect to each Credit Party that is a
corporation, receipt by the Administrative Agent of the following:
(i) Charter Documents. Copies of the articles or certificates
of incorporation or other charter documents of such Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other jurisdiction
of its incorporation and certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the Closing
Date.
-39-
(ii) Bylaws. A copy of the bylaws of such Credit Party
certified by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Closing Date.
(iii) Good Standing. Copies of certificates of good standing,
existence or their equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental Authority
of the state or other jurisdiction of incorporation and each other
jurisdiction in which the failure to so qualify and be in good standing
could have a Material Adverse Effect.
(d) Limited Liability Company Documents. With respect to each Credit
Party that is a limited liability company, receipt by the Administrative Agent
of the following:
(i) Certificate of Formation. A copy of the certificate of
formation of such Credit Party certified to be true and complete by the
appropriate Governmental Authority of the state or jurisdiction of its
formation and certified by the sole or managing member of such Credit
Party to be true and correct as of the Closing Date.
(ii) Operating Agreement. A copy of the Operating Agreement of
such Credit Party certified by the sole or managing member of such
Credit Party to be true and correct as of the Closing Date.
(iii) Good Standing. Copies of certificates of good standing,
existence or their equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental Authority
of the state or other jurisdiction of formation and each other
jurisdiction in which the failure to so qualify and be in good standing
could have a Material Adverse Effect.
(e) Trust Documents. With respect to BRT, receipt by the Administrative
Agent of the following:
(i) Declaration of Trust. A copy of the Declaration of Trust
of BRT certified to be true and complete by the appropriate
Governmental Authority of the state or jurisdiction of its formation
and certified by the secretary of BRT to be true and correct as of the
Closing Date.
(ii) Bylaws. A copy of the Bylaws of BRT certified by the
trustee of BRT to be true and complete as of the Closing Date.
(iii) Resolutions. Copies of the resolutions of the Board of
Trustees of BRT approving and adopting the Credit Documents to which it
and each Credit Party is a party, the transactions contemplated therein
and authorizing execution and delivery thereof by and on behalf of
itself and each Credit Party.
(iv) Good Standing. Copies of certificates of good standing,
existence or their equivalent with respect to BRT certified as of a
recent date by the appropriate Governmental Authorities of the state or
other jurisdiction of formation and each other jurisdiction in which
the failure to so qualify and be in good standing could have a Material
Adverse Effect.
(v) Incumbency. An incumbency certificate with respect to each
of the Credit Parties, certified by a secretary or assistant secretary
of BRT to be true and correct as of the Closing Date.
-40-
(f) Financial Statements. Receipt and approval by the Lenders of: (i)
the consolidated financial statements of the Credit Parties and their
Subsidiaries for the fiscal year ended December 31, 2003, including balance
sheets and income and cash flow statements, audited by nationally recognized
independent public accountants and containing an unqualified opinion of such
firm that such statements present fairly, in all material respects, the
consolidated financial condition and results of operations of such Person, and
are prepared in conformity with GAAP, (ii) unaudited interim consolidated
financial statements of the Credit Parties and their Subsidiaries for the six
months ended June 30, 2004, including balance sheets and income and cash flow
statements, accompanied by a certificate of the chief financial officer of BRT
to the effect that such interim financial statements fairly present in all
material respects the financial condition and results of operations of the
Credit Parties and their Subsidiaries and have been prepared in accordance with
GAAP, subject to changes resulting from audit and normal year-end audit
adjustments and (iii) unaudited consolidated financial statements of the Credit
Parties and their Subsidiaries for the fiscal year ended December 31, 2003 and
for the six months ended June 30, 2004, prepared on a Pro Forma Basis giving
effect to the Acquisition and related transactions as if each had occurred on
and as of the first day of the relevant period.
(g) Fees and Expenses. Payment by the Borrowers of all fees and
expenses owed by them to the Lenders and the Administrative Agent (including
pursuant to Section 11.5 hereof), including, without limitation, payment to the
Administrative Agent of the fees set forth herein and in the Fee Letter.
(h) Opinion of Counsel. Receipt by the Administrative Agent of opinions
(which shall cover, among other things, authority, legality, validity, no
conflict, binding effect and enforceability), satisfactory to the Administrative
Agent, addressed to the Administrative Agent and the Lenders and dated as of the
Effective Date, from legal counsel to the Credit Parties.
(i) Material Adverse Effect. There shall not have occurred a change
since June 30, 2004 that has had or could reasonably be expected to have a
Material Adverse Effect.
(j) Litigation. There shall not exist any pending or threatened action,
suit, investigation or proceeding in any court or before any arbitrator or
Governmental Authority against a Credit Party or any of its Subsidiaries that
would have or would reasonably be expected to have a Material Adverse Effect.
(k) Officer's Certificate. The Administrative Agent shall have received
a certificate of the Borrowers on behalf of the Credit Parties as of the Closing
Date stating that (i) the Credit Parties and each of their Subsidiaries are in
compliance with all existing material financial obligations, (ii) no action,
suit, investigation or proceeding is pending or threatened in any court or
before any arbitrator or Governmental Authority that purports to affect a Credit
Party or any
-41-
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding could have or could be reasonably expected to have a
Material Adverse Effect, (iii) the financial statements and information
delivered pursuant to Section 5.1(f) were prepared in good faith and (iv)
immediately after giving effect to this Credit Agreement, the other Credit
Documents and all the transactions contemplated herein and therein to occur on
such date, (A) each of the Credit Parties is Solvent, (B) no Default or Event of
Default exists, (C) all representations and warranties contained herein and in
the other Credit Documents are true and correct in all material respects, and
(D) the Credit Parties and their Subsidiaries are in compliance as of June 30,
2004 with each of the financial covenants set forth in Section 7.2.
(l) Consents and Approvals. All governmental, shareholder, partner,
member and third-party consents and approvals necessary or, in the opinion of
the Administrative Agent, desirable in connection with the making of the Term
Loans and the transactions contemplated under the Credit Documents shall have
been duly obtained and shall be in full force and effect, and a copy of each
such consent or approval shall have been delivered to the Administrative Agent.
(m) Existing Term Loan Credit Agreement. Immediately after giving
effect to the making of the requested Term Loans, all loans and obligations
under the Existing Term Loan Credit Agreement shall have been satisfied and
discharged and the commitments thereunder shall have been terminated, and the
Administrative Agent shall have received satisfactory evidence thereof.
(n) Existing Revolving Credit Agreement. Borrowers shall have obtained
and there shall be in full force and effect the First Amendment to the Existing
Revolving Credit Agreement, the effect of which shall permit the consummation of
the Acquisition and all related transactions contemplated under the Contribution
Agreement and the Credit Documents, and the Administrative Agent shall have
received satisfactory evidence thereof.
(o) Delivery of Notice. The Borrowers shall have delivered a Notice of
Borrowing, duly executed and completed, by the time specified in Section 2.1(a).
(p) No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto and to the application
of the proceeds therefrom.
(q) Restrictions on Loans. After giving effect to the making of the
requested Term Loans, the Borrowers shall be in compliance with the terms of
Section 2.1(e).
(r) Acquisition. The Acquisition shall have been consummated in
accordance with applicable requirements of law and upon receipt of all necessary
or, in the discretion of the Administrative Agent, advisable governmental and
third party approvals, and no material provision of the Contribution Agreement
shall have been amended, waived or otherwise modified without the prior written
consent of each of the Administrative Agent and the Required Lenders.
(s) Capital Structure. As of the Effective Date and after giving effect
to the Acquisition and related transactions, (x) the capital and ownership
structure of the Combined Parties shall be in the form set forth on Exhibit
6.16, (y) all of the existing indebtedness of the Target and its Subsidiaries
shall have been repaid, other than the Existing Debt and (z) the consummation of
the Acquisition shall not have resulted in a default, event of default,
prepayment or acceleration of all or any portion of the Existing Debt.
-42-
(t) Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably and timely requested by any Lender,
including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property ownership and
contingent liabilities of the Credit Parties and their Subsidiaries.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1. FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(f) and Section 7.1(a) and (b): (a) have been prepared in accordance with
GAAP (subject, in the case of quarterly financial statements, to changes
resulting from audit and normal year-end audit adjustments) and (b) present
fairly the consolidated financial condition, results of operations and cash
flows of the Credit Parties and their Subsidiaries as of such date and for such
periods. Since December 31, 2003, there has been no sale, transfer or other
disposition by any Credit Party or any of its Subsidiaries of any material part
of the business or property of the Credit Parties and their Subsidiaries, taken
as a whole, and no purchase or other acquisition by any of them of any business
or property (including any capital stock or other equity interests of any other
Person) material in relation to the consolidated financial condition of the
Credit Parties and their Subsidiaries, taken as a whole, in each case, which, is
not (i) reflected in the most recent financial statements delivered to the
Lenders pursuant to Section 5.1(f) and Section 7.1 or in the notes thereto or
(ii) otherwise permitted by the terms of this Credit Agreement.
6.2. ABSENCE OF ANY UNDISCLOSED LIABILITIES.
There are no liabilities of the Borrower or any of its Subsidiaries of
any kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which could reasonably be expected to result in any such
liabilities, other than those liabilities provided for or disclosed in the most
recently delivered financial statements, which would be reasonably expected to
have a Material Adverse Effect.
6.3. NO MATERIAL CHANGE.
Since the later of June 30, 2004 or the date of the last Loan made
under this Credit Agreement, there has been no development or event relating to
or affecting a Combined Party which has had or would be reasonably expected to
have a Material Adverse Effect.
-43-
6.4. ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is either a partnership, a corporation, a limited
liability company or a REIT duly organized or formed, validly existing and in
good standing under the laws of the state (or other jurisdiction) of its
organization or formation, (b) is duly qualified and in good standing as a
foreign partnership, a foreign corporation, a foreign limited liability company
or a foreign REIT and authorized to do business in every other jurisdiction
where the failure to be so qualified, in good standing or authorized would have
or would reasonably be expected to have a Material Adverse Effect and (c) has
the power and authority to own its properties and to carry on its business as
now conducted and as proposed to be conducted.
6.5. DUE AUTHORIZATION.
Each Credit Party (a) has the power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is
a party and to incur the obligations herein and therein provided for and to
consummate the transactions contemplated herein and therein and (b) is duly
authorized, and has been authorized by all necessary action, to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is
a party and to consummate the transactions contemplated herein and therein.
6.6. NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated herein and therein, nor the
performance of or compliance with the terms and provisions hereof and thereof by
a Credit Party will (a) violate or conflict with any provision of its
organizational or governing documents, (b) violate, contravene or materially
conflict with any Requirement of Law or any other law, regulation (including,
without limitation, Regulation U or Regulation X), order, writ, judgment,
injunction, decree or permit applicable to it, (c) violate, contravene or
conflict with contractual provisions of, or cause an event of default under, any
indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it may be bound, the violation
of which would have or would be reasonably expected to have a Material Adverse
Effect, or (d) result in or require the creation of any Lien upon or with
respect to its properties.
6.7. CONSENTS.
Except for consents, approvals, authorizations and orders that have
been obtained, and filings, registrations and qualifications that have been
made, no consent, approval, authorization or order of, or filing, registration
or qualification with, any court or Governmental Authority or third party in
respect of any Credit Party is required in connection with the execution,
delivery or performance of this Credit Agreement or any of the other Credit
Documents by such Credit Party or the consummation of the transactions
contemplated herein and therein.
6.8. ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents to which it is a
party have been duly executed and delivered and constitute legal, valid and
binding obligations of each Credit Party enforceable against such Credit Party
in accordance with their respective terms, except as may be limited by
bankruptcy or insolvency laws or similar laws affecting creditors' rights
generally or by general equitable principles.
-44-
6.9. NO DEFAULT.
No Combined Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its properties
is bound which default would have or would be reasonably expected to have a
Material Adverse Effect. No Default or Event of Default has occurred or exists
except as previously disclosed in writing to the Lenders.
6.10. OWNERSHIP.
Each Credit Party and each of its Subsidiaries is the owner of, and has
good and marketable title to, all of its respective assets and none of such
assets is subject to any Lien other than Permitted Liens.
6.11. INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
as otherwise permitted by this Credit Agreement.
6.12. LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings or investigations, pending or, to the knowledge of
any Credit Party, threatened, against a Combined Party which would have or would
be reasonably expected to have a Material Adverse Effect.
6.13. TAXES.
Each Credit Party, and each of its Subsidiaries, has filed, or caused
to be filed, all tax returns (federal, state, local and foreign) required to be
filed and has paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. No Credit Party is aware of any material proposed tax
assessments against it or any of its Subsidiaries.
6.14. COMPLIANCE WITH LAW.
Each Combined Party is in compliance with all Requirements of Law and
all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply would not have or would not be reasonably expected to
have a Material Adverse Effect. No Requirement of Law would be reasonably
expected to cause a Material Adverse Effect.
-45-
6.15. COMPLIANCE WITH ERISA.
Except as would not result in or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best of each Credit Party's, each Subsidiary of a Credit Party's and each
ERISA Affiliate's knowledge, no event or condition has occurred or exists as a
result of which any ERISA Event could reasonably be expected to occur, with
respect to any Plan; (ii) no "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own terms and in
material compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no Lien in favor or the PBGC or a
Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing the
actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) No Credit Party, Subsidiary of a Credit Party or ERISA Affiliate
has incurred, or, to the best of each such party's knowledge, is reasonably
expected to incur, any withdrawal liability under ERISA to any Multiemployer
Plan or Multiple Employer Plan. No Credit Party, Subsidiary of a Credit Party or
ERISA Affiliate would become subject to any withdrawal liability under ERISA if
any such party were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No Credit Party, Subsidiary
of a Credit Party or ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and no Multiemployer Plan
is, to the best of each such party's knowledge, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility has
occurred with respect to a Plan which has subjected or may subject any Credit
Party, any Subsidiary of a Credit Party or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code,
or under any agreement or other instrument pursuant to which any Credit Party,
any Subsidiary of a Credit Party or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(e) No Credit Party, Subsidiary of a Credit Party or ERISA Affiliate
has material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects with such sections.
-46-
6.16. ORGANIZATION STRUCTURE/SUBSIDIARIES.
As of the Closing Date, (a) Schedule 6.16 is a complete and accurate
organization chart of the Combined Parties, and (b) no Credit Party has any
Subsidiaries or owns an interest, directly or indirectly, in any joint venture,
except as set forth on Schedule 6.16. The outstanding equity interest of all
Subsidiaries of the Credit Parties are validly issued, fully paid and
non-assessable and are owned by the Credit Parties free and clear of all Liens.
Schedule 6.16 shall be updated as of the end of each fiscal quarter as set forth
in Section 7.1(c). Each owner of an Unencumbered Property is a Credit Party.
6.17. USE OF PROCEEDS; MARGIN STOCK.
The proceeds of the Loans will be used solely for the purposes
specified in Section 7.10. None of the proceeds of the Loans will be used in a
manner that would violate Regulation U, Regulation X, or Regulation T. No
proceeds of the Loans will be used for the acquisition of another Person unless
the board of directors (or other comparable governing body) or stockholders (or
other equity owners), as appropriate, of such Person has approved such
acquisition.
6.18. GOVERNMENT REGULATION.
No Credit Party, nor any of its Subsidiaries, is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940 or the Interstate Commerce Act, each as amended.
No director, executive officer or principal shareholder of a Credit Party or any
of its Subsidiaries is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director," "executive officer"
and "principal shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation O.
6.19. ENVIRONMENTAL MATTERS.
(a) Except as would not have or be reasonably expected to have a
Material Adverse Effect:
(i) Each of the Properties and all operations at the
Properties are in material compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect
to the Properties or the businesses operated by a Credit Party or any
of its Subsidiaries (the "Businesses"), and there are no conditions
relating to the Businesses or Properties that would be reasonably
expected to give rise to liability under any applicable Environmental
Laws.
(ii) No Credit Party, nor any of its Subsidiaries, has
received any written notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the Properties
or the Businesses, nor does any Credit Party or any of its Subsidiaries
have knowledge that any such notice is being threatened.
-47-
(iii) Hazardous Materials have not been transported or
disposed of from the Properties, or generated, treated, stored or
disposed of at, on or under any of the Properties or any other
location, in each case by, or on behalf or with the permission of, any
Credit Party or any of its Subsidiaries in a manner that would
reasonably be expected to give rise to liability under any applicable
Environmental Law.
(iv) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of any Credit Party or any of
its Subsidiaries, threatened, under any Environmental Law to which any
Credit Party or any of its Subsidiaries is or will be named as a party,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to any Credit Party or any of its Subsidiaries, the Properties
or the Businesses, in any amount reportable under the federal
Comprehensive Environmental Response, Compensation and Liability Act or
any analogous state law, except releases in compliance with all
Environmental Laws.
(v) There has been no release or threat of release of
Hazardous Materials at or from the Properties, or arising from or
related to the operations (including, without limitation, disposal) of
a Credit Party or any of its Subsidiaries in connection with the
Properties or otherwise in connection with the Businesses except in
compliance with Environmental Laws.
(vi) None of the Properties contains, or to the best knowledge
of the Credit Parties and their Subsidiaries has previously contained,
any Hazardous Materials at, on or under the Properties in amounts or
concentrations that, if released, constitute or constituted a violation
of, or could give rise to liability under, Environmental Laws.
(vii) No Credit Party, nor any of its Subsidiaries, has
assumed any liability of any Person (other than a Borrower) under any
Environmental Law.
(b) Each Credit Party, and each of its Subsidiaries, has adopted
procedures that are designed to (i) ensure that each such party, any of its
operations and each of the properties owned or leased by such party remains in
compliance with applicable Environmental Laws and (ii) minimize any liabilities
or potential liabilities that each such party, any of its operations and each of
the properties owned or leased by each such party may have under applicable
Environmental Laws.
6.20. SOLVENCY.
Each Credit Party, is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
-48-
6.21. INVESTMENTS.
All Investments of the Credit Parties and their Subsidiaries are
Permitted Investments.
6.22. LOCATION OF PROPERTIES.
As of the Closing Date, set forth on Schedule 6.22 is (a) a list of all
Properties (with street address, county and state where located) and the owner
of such Property and (b) a list of all Unencumbered Properties. Schedule 6.22
shall be updated as of the end of each fiscal quarter as set forth in Section
7.1(c).
6.23. DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Credit Party in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not misleading in light of the circumstances in which made;
provided, however, that the Credit Parties make no representation or warranty
regarding the information delivered pursuant to Section 7.1(i).
6.24. LICENSES, ETC.
The Combined Parties have obtained, and hold in full force and effect,
all franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of their respective businesses
as presently conducted, except where the failure to obtain the same would not
have or would not reasonably be expected to have a Material Adverse Effect.
6.25. NO BURDENSOME RESTRICTIONS.
No Combined Party is a party to any agreement or instrument or subject
to any other obligation or any charter or corporate restriction or any provision
of any applicable law, rule or regulation which, individually or in the
aggregate, would have or would be reasonably expected to have a Material Adverse
Effect.
6.26. EXCLUDED MATERIAL SUBSIDIARIES.
With respect to the Excluded Material Subsidiaries:
(a) Brandywine Holdings I, Inc. holds a nominal interest in BOP to
ensure that BOP will at all times have at least two partners, and has no other
activity and owns no other assets.
(b) Each of The Association at Allendale, Inc. and Princeton Pike V, VI
& VII Condominium Association, Inc. is a non-profit corporation that holds no
assets and whose activities are limited to managing the common spaces of its
respective condominium property.
-49-
(c) Each of the remaining Excluded Materials Subsidiaries (i) is an
entity which is subject to provisions in its charter documents that require it
to be a "bankruptcy remote" or "single purpose" entity and therefore prohibit it
from, among other things, guaranteeing or becoming jointly and severally liable
for the Indebtedness of others or (ii) otherwise is excluded for the reasons set
forth on Schedule 6.26.
6.27. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
None of the requesting or borrowing of the Loans or the use of the
proceeds of any thereof will violate the Trading With the Enemy Act (50 U.S.C.
Section 1 et seq., as amended) (the "TRADING WITH THE ENEMY ACT") or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) (the "FOREIGN ASSETS CONTROL
REGULATIONS") or any enabling legislation or executive order relating thereto
(which for the avoidance of doubt shall include, but shall not be limited to
Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)) (the "EXECUTIVE ORDER"). Furthermore, neither
Borrower nor any of their Subsidiaries or other Affiliates (a) is or will become
a "blocked person" as described in the Executive Order, the Trading With the
Enemy Act or the Foreign Assets Control Regulations or (b) engages or will
engage in any dealings or transactions, or be otherwise associated, with any
such "blocked person".
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Obligations have been paid in full
and the Commitments hereunder shall have terminated:
7.1. INFORMATION COVENANTS.
The Borrowers will furnish, or cause to be furnished, to the
Administrative Agent and, except as otherwise set forth in this Section, each of
the Lenders:
(a) Annual Financial Statements. As soon as available, and in any event
within ninety (90) days after the close of each fiscal year of the Credit
Parties, a consolidated balance sheet and income statement of the Credit Parties
and their Subsidiaries as of the end of such fiscal year, together with related
consolidated statements of operations and retained earnings and of cash flows
for such fiscal year, setting forth in comparative form consolidated figures as
of the end of and for the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and whose opinion shall be to the effect
that such financial statements have been prepared in accordance with GAAP
(except for changes with which such accountants concur) and shall not be limited
as to the scope of the audit or qualified in any manner.
-50-
(b) Quarterly Financial Statements. As soon as available, and in any
event within forty-five (45) days after the close of each fiscal quarter of the
Credit Parties (other than the fourth fiscal quarter), a consolidated balance
sheet and income statement of the Credit Parties and their Subsidiaries, as of
the end of such fiscal quarter, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal quarter in
each case setting forth in comparative form consolidated figures for (A) the
corresponding quarter end and quarterly period of the preceding fiscal year and
(B) management's proposed budget for such period, all such financial information
described above to be in reasonable form and detail and reasonably acceptable to
the Administrative Agent, and accompanied by a certificate of the chief
financial officer of BOP to the effect that such quarterly financial statements
fairly present in all material respects the financial condition and results of
operations of the Credit Parties and their Subsidiaries and have been prepared
in accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments. The information required pursuant to this subsection
(b) shall be delivered in both electronic and printed form.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b), a certificate of the
chief financial officer or chief executive officer of BRT, substantially in the
form of Exhibit 7.1(c), (i) demonstrating compliance with the financial
covenants contained in Section 7.2 by calculation thereof as of the end of each
such fiscal period, including such detail and supporting documentation as
reasonably requested by the Administrative Agent (ii) stating that no Default or
Event of Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrowers propose
to take with respect thereto, (iii) providing information regarding (A)
Investments in a manner to demonstrate compliance with Section 8.6 and (B)
dividends and redemption of shares in a manner to demonstrate compliance with
Section 8.7 and (iv) updating Schedule 6.16 and Schedule 6.22 as appropriate.
Such certificate shall be delivered in both electronic and printed form.
(d) Accountant's Certificate. Within the period for delivery of the
annual financial statements provided in Section 7.1(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Credit Agreement and stating further whether, in the course of their audit, they
have become aware of any Default or Event of Default and, if any such Default or
Event of Default exists, specifying the nature and extent thereof.
(e) Annual Information and Projections. Within thirty (30) days after
the end of each fiscal year of the Credit Parties, all such financial
information regarding the Credit Parties and their Subsidiaries and specifically
regarding the Properties, as the Administrative Agent shall reasonably request,
including, but not limited to, partnership, limited liability company and joint
venture agreements, property cash flow projections, property budgets, actual and
budgeted capital expenditures, operating statements (current year and
immediately preceding year, if the Property existed as a Property in the
immediately preceding year), mortgage information, rent rolls, lease expiration
reports, leasing status reports, notes payable summary, bullet notes summary,
equity funding requirements, contingent liability summary, lines of credit
summary, lines of credit collateral summary, wrap notes and notes receivable
summary, schedule of outstanding letters of credit, summary of cash and Cash
Equivalents, projection of management and leasing fees and overhead budgets.
-51-
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
"management letter" submitted by independent accountants to any Credit Party or
any of its Subsidiaries in connection with any annual, interim or special audit
of the books of such Credit Party or any of its Subsidiaries.
(g) Reports. Promptly, (i) and in any case within five (5) days of
receipt or transmission thereof, copies of any filings and registrations with,
and reports to or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements, notices and
reports as any Credit Party or any of its Subsidiaries shall send to its
shareholders, members or partners generally, (ii) and in any case within ten
(10) days of filing thereof, copies of all income tax returns filed by a Credit
Party and (iii) upon the written request of the Administrative Agent, all
reports and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety Administration, or any
state or local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental, health or safety
matters; provided, however, that if any such transmissions are done
electronically, the Borrowers shall instead promptly notify the Administrative
Agent of same and provide information on how to retrieve such information.
(h) Notices. Upon a Credit Party obtaining knowledge thereof, such
Credit Party will give written notice to the Administrative Agent (which shall
promptly forward such notice to the Lenders) immediately of (i) the occurrence
of an event or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Credit Parties propose to
take with respect thereto, (ii) the occurrence of any of the following with
respect to any Credit Party or any of its Subsidiaries: (A) the pendency or
commencement of any litigation or arbitral or governmental proceeding against
any Credit Party or any of its Subsidiaries which if adversely determined would
have or would be reasonably expected to have a Material Adverse Effect, or (B)
the institution of any proceedings against any Credit Party or any of its
Subsidiaries with respect to, or the receipt of notice by such Person of
potential liability or responsibility for, violation, or alleged violation, of
any federal, state or local law, rule or regulation, including, but not limited
to, Environmental Laws, the violation of which would have or would be reasonably
expected to have a Material Adverse Effect, and (iii) the occurrence of any
enforcement or notice to enforce a completion guaranty and within five Business
Days thereafter provide evidence that the remaining costs to complete the
applicable project are covered by a construction loan and/or surety bond.
(i) ERISA. Upon a Credit Party or any ERISA Affiliate obtaining
knowledge thereof, the Credit Parties will give written notice to the
Administrative Agent promptly (and in any event within five Business Days) of:
(i) any event or condition, including, but not limited to, any Reportable Event,
that constitutes, or might reasonably lead to, an ERISA Event; (ii) with respect
to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment on or
before the due date (including extensions) thereof of all amounts which a Credit
Party, any Subsidiary of a Credit Party or any ERISA Affiliate is required to
contribute to each Plan pursuant to its terms as required to meet the minimum
funding standard set forth in ERISA and the Code with respect thereto; or (iv)
any change in the funding status of any Plan that could have a Material Adverse
Effect; in each case together, with a description of any such event or condition
or a copy of any
-52-
such notice and a statement by the chief financial officer of the Borrowers
briefly setting forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is proposed to be
taken by such Credit Party, Subsidiary or ERISA Affiliate with respect thereto.
Promptly upon request, the Credit Parties shall furnish the Administrative Agent
and the Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each "plan
year" (within the meaning of Section 3(39) of ERISA).
(j) Environmental.
(i) Subsequent to a notice from any Governmental Authority
that would reasonably cause concern or during the existence of an Event
of Default, and upon the written request of the Administrative Agent,
the Credit Parties will furnish or cause to be furnished to the
Administrative Agent, at the Credit Parties' expense, an updated report
of an environmental assessment of reasonable scope, form and depth,
including, where appropriate, invasive soil or groundwater sampling, by
a consultant reasonably acceptable to the Administrative Agent as to
the nature and extent of the presence of any Hazardous Materials on any
Property and as to the compliance by the Credit Parties with
Environmental Laws. If the Credit Parties fail to deliver such an
environmental report within seventy-five (75) days after receipt of
such written request then the Administrative Agent may arrange for
same, and the Credit Parties hereby grant to the Administrative Agent
and its representatives access to the Properties and a license of a
scope reasonably necessary to undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The
reasonable cost of any assessment arranged for by the Administrative
Agent pursuant to this provision will be payable by the Credit Parties
on demand and added to the Obligations.
(ii) Each of the Credit Parties and their Subsidiaries will
conduct and complete all investigations, studies, sampling, and testing
and all remedial, removal, and other actions necessary to address all
Hazardous Materials on, from, or affecting any Property to the extent
necessary to be in compliance with all Environmental Laws and all other
applicable federal, state, and local laws, regulations, rules and
policies and with the orders and directives of all Governmental
Authorities exercising jurisdiction over such Property to the extent
any failure would have or would be reasonably expected to have a
Material Adverse Effect.
(k) Other Information. With reasonable promptness upon any such
request, such other information regarding the Properties or regarding the
business, assets or financial condition of the Credit Parties and their
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
-53-
7.2. FINANCIAL COVENANTS.
(a) Interest Coverage Ratio. The Interest Coverage Ratio, as of the end
of each fiscal quarter of the Combined Parties for the twelve month period
ending on such date, shall be greater than or equal to 2.0 to 1.0.
(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of
the end of each fiscal quarter of the Combined Parties for the twelve month
period ending on such date, shall be greater than or equal to 1.5 to 1.0.
(c) Net Worth. At all times, Net Worth shall be greater than or equal
to the sum of (i) $750,000,000 plus (ii) 85% of the Net Cash Proceeds from all
Equity Issuances after the Closing Date (other than Equity Issuances referred to
in the following subclause (iii)) plus (iii) 85% of the actual increase in Net
Worth (if any) resulting from an Equity Issuance after the Closing Date made in
connection with an Incentive Stock Plan.
(d) Leverage Ratio. The Leverage Ratio, as of the end of each fiscal
quarter of the Combined Parties, shall be less than or equal to (i) .60 to 1.0
from the period from and including the Closing Date until the earlier of (A)
March 31, 2005 or (B) the cancellation or termination in full of the Commitments
or the repayment in full of the outstanding Term Loans (such earlier date of (A)
and (B) being referred to herein as the "STEP-BACK DATE"), and (iii) .55 to 1.0
on and after the Step-back Date.
(e) Unsecured Debt Limitation. At the end of each fiscal quarter of the
Combined Parties, Unsecured Debt shall be less than or equal to the sum (such
sum being referred to herein as the "ADJUSTED UNENCUMBERED VALUE") of (i)
Unencumbered Property Value divided by (A) 1.55 for the period from and
including the Closing Date until the Step-back Date and (B) 1.75 on and after
the Step-back Date plus (ii) Unencumbered Construction-in-Process and Eligible
Land Value divided by 2; provided that (x) no Property shall account for more
than 20% of Adjusted Unencumbered Value and (y) Unencumbered
Construction-in-Process and Eligible Land Value divided by 2 shall not account
for more than 25% of Adjusted Unencumbered Value.
(f) Secured Debt Ratio. The Secured Debt Ratio, as of the end of each
fiscal quarter of the Combined Parties, shall be less than or equal to .40 to
1.0.
(g) Unencumbered Cash Flow Ratio. The Unencumbered Cash Flow Ratio, as
of the end of each fiscal quarter of the Combined Parties, shall be greater than
or equal to (i) 1.50 to 1.0 for the period from and including the Closing Date
until the Step-back Date and (ii) 1.65 to 1.0 on and after the Step-back Date.
(h) Credit Party Assets. At all times, at least 65% of Total Asset
Value must be owned by the Credit Parties.
7.3. PRESERVATION OF EXISTENCE.
Each of the Credit Parties will do all things necessary to preserve and
keep in full force and effect its existence, rights, franchises and authority
except as permitted by Section 8.4. Without limiting the generality of the
foregoing, BRT will do all things necessary to maintain its status as a REIT.
-54-
7.4. BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
7.5. COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause its Subsidiaries to,
comply in all material respects with all material laws, rules, regulations and
orders, and all applicable material restrictions imposed by all Governmental
Authorities, applicable to it and its property (including, without limitation,
Environmental Laws and ERISA).
7.6. PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay, settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that a Credit Party or any of its Subsidiaries shall not be required to
pay any such tax, assessment, charge, levy, claim or Indebtedness which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) would give rise to an immediate right to
foreclose on a Lien on an Unencumbered Property securing such amounts (unless no
Default or Event of Default would exist after giving effect to the disposition
of such Unencumbered Property) or (ii) would have a Material Adverse Effect.
7.7. INSURANCE.
Each of the Credit Parties will, and will cause its Subsidiaries to, at
all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice.
7.8. MAINTENANCE OF ASSETS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its Properties and all other assets in good repair,
working order and condition, normal wear and tear excepted, and will make, or
cause to be made, in the Properties and other assets, from time to time, all
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
-55-
7.9. PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
7.10. USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Term Loans solely to
(i) repay amounts outstanding under the Existing Term Loan Credit Agreement,
(ii) pay the contribution price pursuant to the Contribution Agreement in order
to effect the Acquisition, (iii) refinance certain indebtedness of Target
identified and in the amounts set forth on Schedule 7.10 hereto and (iv) pay
related fees and expenses not exceeding the amount therefor set forth on
Schedule 7.10 hereto.
7.11. AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause its Subsidiaries to, permit representatives appointed
by the Administrative Agent, including, without limitation, independent
accountants, agents, attorneys and appraisers to visit and inspect such Credit
Party's or other Combined Party's property, including, without limitation, the
Properties, its books and records, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies or photographs
thereof and to write down and record any information such representative obtains
and shall permit the Administrative Agent or its representatives to investigate
and verify the accuracy of information provided to the Lenders, and to discuss
all such matters with the officers, employees and representatives of the Credit
Parties, their Subsidiaries and any other Combined Party.
7.12. ADDITIONAL CREDIT PARTIES.
At any time a Subsidiary of the Borrowers that is not a Credit Party
becomes the owner (or ground lessor under an Eligible Ground Lease) of Property
that the Borrowers determine to treat as an Unencumbered Property, the Borrowers
shall notify the Administrative Agent and promptly thereafter (but in any event
within thirty (30) days after such event): (a) execute a Joinder Agreement in
substantially the form of Exhibit 7.12 and (b) deliver such other documentation
as the Administrative Agent may reasonably request in connection with the
foregoing, including, without limitation, information regarding the real
property owned by such Person, certified resolutions and other organizational
and authorizing documents of such Person and favorable opinions of counsel to
such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to above), all
in form, content and scope reasonably satisfactory to the Administrative Agent.
7.13. INTEREST RATE PROTECTION AGREEMENTS.
The Borrowers shall maintain Interest Rate ▇▇▇▇▇▇ on a notional amount
of the Funded Debt which, when added to the aggregate principal amount of the
Funded Debt which bears interest at a fixed rate, equals or exceeds (i) prior to
April 1, 2005, 40%, and (ii) from and after April 1, 2005, 60%, of the aggregate
principal amount of all Funded Debt. "Interest Rate ▇▇▇▇▇▇" shall mean interest
rate exchange, collar, cap, swap, adjustable strike cap, adjustable strike
corridor or similar agreements having terms, conditions and tenors reasonably
acceptable to the Administrative Agent and entered into by the Credit Parties in
order to provide protection to, or minimize the impact upon, the Credit Parties
of increasing floating rates of interest applicable to the Funded Debt.
-56-
7.14. CONSTRUCTION.
With respect to any construction and development engaged in by the
Combined Parties, the Credit Parties shall or shall cause another Person to: (a)
comply with all applicable regulations and codes and (b) complete all such
construction and development in accordance with approved plans and
specifications.
7.15. ACQUISITIONS AND SALES.
If a Credit Party or one of its Subsidiaries anticipates (a) making an
Investment or an acquisition in excess of $75 million or (b) the sale, lease,
transfer, encumbrance or disposition of a Property (or equity interest therein)
for consideration in excess of $50 million, then five (5) Business Days prior to
such Credit Party (or Subsidiary) taking such action, the Borrowers shall
provide the Administrative Agent written notice of such action, together with a
certification as to compliance with the terms of this Credit Agreement,
including, without limitation, Section 7.2 (on a Pro Forma Basis), after giving
effect to such action prepared and executed by the chief financial officer or
chief executive officer of BRT.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Obligations have been paid in full
and the Commitments hereunder shall have terminated:
8.1. INDEBTEDNESS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness owing from one Credit Party to another Credit Party;
(c) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business; and
(d) Other Indebtedness as long as, prior to and after giving effect
thereto, the Credit Parties are otherwise in compliance with the terms of this
Credit Agreement.
-57-
8.2. LIENS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Properties or any other assets of any kind (whether real or personal,
tangible or intangible), whether now owned or after acquired, except for
Permitted Liens.
8.3. NATURE OF BUSINESS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
alter the character of its business from that conducted as of the Closing Date
or engage in any business other than the business conducted as of the Closing
Date.
8.4. CONSOLIDATION AND MERGER.
No Credit Party will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that notwithstanding the foregoing
provisions of this Section 8.4, (a) any Credit Party may be merged or
consolidated with or into another Credit Party; provided that (i) if the
transaction is between a Borrower and another Credit Party such Borrower is the
continuing or surviving entity; (ii) the Administrative Agent is given prior
written notice of such action, and the Credit Parties execute and deliver such
documents, instruments and certificates as the Administrative Agent may
reasonably request; and (iii) after giving effect thereto no Default or Event of
Default exists; (b) upon prior written notification to the Administrative Agent,
any Credit Party that is a Subsidiary of a Borrower may be dissolved or
liquidated so long as (i) after giving effect thereto no Default or Event of
Default exists, (ii) all assets of such Credit Party shall become assets of
another Credit Party and (iii) the Credit Parties execute and deliver such
documents, instruments and certificates as the Administrative Agent may
reasonably request; and (c) upon prior written notification to the
Administrative Agent, as long as no Default or Event of Default exists, a Credit
Party that has no assets and no revenues may be dissolved or liquidated.
8.5. SALE OR LEASE OF ASSETS.
(a) No Property may be conveyed, sold, leased, transferred or otherwise
disposed of unless the Borrowers comply with Section 7.15 (if applicable) and
after giving effect thereto no Default or Event of Default exists.
(b) No equity interest in any Guarantor may be conveyed, sold,
transferred or otherwise disposed of unless the Borrowers comply with Section
7.15 (if applicable) and after giving effect thereto no Default or Event of
Default exists. Upon the disposition of an equity interest in a Guarantor in
conformance with the terms hereof, if after the disposition of such equity
interest such Guarantor is no longer a Material Subsidiary or no longer
qualifies as the owner of any Unencumbered Properties the Lenders agree to
release such Guarantor from its obligations hereunder, and the Lenders hereby
consent to the Administrative Agent executing and delivering such releases as
necessary to give effect to such agreement.
-58-
8.6. ADVANCES, INVESTMENTS AND LOANS.
Neither the Credit Parties nor any of their Subsidiaries will make any
Investments except for Permitted Investments.
8.7. RESTRICTED PAYMENTS.
BOP will not, directly or indirectly, declare or pay any dividends or
make any other distribution upon any of its shares of beneficial interests or
any shares of its capital stock of any class or with respect to any of its
membership or partnership interests; provided that BOP may pay dividends or make
distributions in an amount not to exceed, in the aggregate, the greater of (i)
90% of Funds From Operations earned subsequent to March 31, 2004 or (ii) the
minimum amount necessary for BRT to maintain its status as a REIT.
8.8. TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit any of its Subsidiaries to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, trustee, shareholder,
Subsidiary or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's-length transaction with a
Person other than an officer, director, trustee, shareholder, Subsidiary or
Affiliate.
8.9. FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will (a) change its fiscal year or (b) change its
articles or certificate of incorporation, its bylaws, its declaration of trust,
its limited liability company agreement, its articles or certificate of
partnership or partnership agreement or any other organization or formation
documents in any manner that would have an adverse effect of the rights of the
Lenders under the Credit Documents; provided that (i) BRT may take such action,
with prior written notice to the Administrative Agent, as is necessary to
maintain its status as a REIT and (ii) the Credit Parties will provide prompt
written notice to the Administrative Agent of any change to be made in
compliance with the terms of this Section 8.9.
8.10. LIMITATIONS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Person to pay any Indebtedness owed to the
Credit Parties; provided that a Subsidiary of a Credit Party (which is not
itself a Credit Party) that obtains financing may agree with the provider of
such financing to restrict repayments of Indebtedness owing to Credit Parties.
8.11. OTHER NEGATIVE PLEDGES.
The Credit Parties will not enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation except as provided under the Credit Documents; provided
that a Credit Party may agree with a joint venture partner not to pledge its
equity interest in such joint venture.
-59-
SECTION 9
EVENTS OF DEFAULT
9.1. EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "EVENT OF DEFAULT"):
(a) Payment. The Credit Parties shall default in the payment (i) when
due of any principal amount of any Loans or (ii) within three days of when due
of any interest on the Loans or any fees or other amounts owing hereunder, under
any of the other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made or delivered.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in Section 7.2, 7.3, 7.10, 7.11, 7.12,
7.14 or 8.1 through 8.11 inclusive; or
(ii) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 7.1 and such default
shall continue unremedied for a period of five Business Days after the
earlier of a Credit Party becoming aware of such default or notice
thereof given by the Administrative Agent; or
(iii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsection (a), (b) or (c)(i) or (ii) of this Section 9.1) contained in
this Credit Agreement and such default shall continue unremedied for a
period of at least thirty (30) days after the earlier of a Credit Party
becoming aware of such default or notice thereof given by the
Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any of the
other Credit Documents and such default shall continue unremedied for a period
of at least thirty (30) days after the earlier of a Credit Party becoming aware
of such default or notice thereof given by the Administrative Agent or (ii) any
Credit Document (or any provision of any Credit Document, including Section 4 of
this Credit Agreement) shall fail to be in full force and effect or any Credit
Party shall so assert or any Credit Document shall fail to give the
Administrative Agent and/or the Lenders the security interests, liens, rights,
powers and privileges purported to be created thereby.
-60-
(e) Bankruptcy, etc. The occurrence of any of the following with
respect to any Credit Party or any of its Subsidiaries: (i) a court or
Governmental Authority having jurisdiction in the premises shall enter a decree
or order for relief in respect of any Credit Party or any of its Subsidiaries in
an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of any Credit Party or any
of its Subsidiaries or for any substantial part of its property or ordering the
winding up or liquidation of its affairs; or (ii) an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect is commenced against any Credit Party or any of its Subsidiaries and such
petition remains unstayed and in effect for a period of sixty (60) consecutive
days; or (iii) any Credit Party or any of its Subsidiaries shall commence a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of such Person or any substantial part of its property or
make any general assignment for the benefit of creditors; or (iv) any Credit
Party or any of its Subsidiaries shall be generally unable or shall admit in
writing its inability to pay its debts generally as they become due or any
action shall be taken by such Person in furtherance of any of the aforesaid
purposes.
(f) Defaults under Other Agreements. With respect to any recourse
Indebtedness (other than Indebtedness outstanding under this Credit Agreement)
of any Credit Party or any of its Subsidiaries in an aggregate principal amount
equal to or in excess of $25,000,000, (i) a Credit Party or one of its
Subsidiaries shall (A) default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such recourse
Indebtedness, or (B) default (after giving effect to any applicable grace
period) in the observance or performance of any term, covenant or agreement
relating to such recourse Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or other
event or condition is to cause, or permit, the holder or holders of such
recourse Indebtedness (or a trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required)
any such recourse Indebtedness to become due prior to its stated maturity; or
(ii) any such recourse Indebtedness shall be declared due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment
prior to the stated maturity thereof; or (iii) any such Indebtedness shall
mature and remain unpaid. With respect to any nonrecourse Indebtedness of any
Credit Party or any of its Subsidiaries in an aggregate principal amount in
excess of $75,000,000, a default in payment (whether by acceleration or
otherwise) shall occur and such payment default is not cured or waived within
ninety (90) days after the occurrence thereof.
(g) Judgments. One or more judgments, orders, or decrees shall be
entered against any one or more of any Credit Party or any of its Subsidiaries
involving a liability of $15,000,000 or more, in the aggregate (to the extent
not paid or covered by insurance provided by a carrier who has acknowledged
coverage), and such judgments, orders or decrees (i) are the subject of any
enforcement proceeding commenced by any creditor or (ii) shall continue
unsatisfied, undischarged and unstayed for a period ending on the first to occur
of (a) the last day on which such judgment, order or decree becomes final and
unappealable or (b) twenty (20) days.
-61-
(h) ERISA Events. The occurrence of any of the following events or
conditions, unless such event or occurrence would not have or be reasonably
expected to have a Material Adverse Effect: (1) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section 412 of
the Code, whether or not waived, shall exist with respect to any Plan, or any
lien shall arise on the assets of a Credit Party, any Subsidiary of a Credit
Party or any ERISA Affiliate in favor of the PBGC or a Plan; (2) an ERISA Event
shall occur with respect to a Single Employer Plan, which is, in the reasonable
opinion of the Administrative Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA; (3) an ERISA Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in (i) the
termination of such Plan for purposes of Title IV of ERISA, or (ii) a Credit
Party, any Subsidiary of a Credit Party or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency (within the meaning of Section
4245 of ERISA) of such Plan; or (4) any prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility shall occur which may subject a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(i) REIT Status. BRT does not maintain its REIT status or is no longer
deemed to be a REIT.
(j) Change of Control. The occurrence of a Change of Control.
(k) Existing Revolving Credit Agreement. An Event of Default (as
defined in the Existing Revolving Credit Agreement) shall exist and be
continuing.
9.2. ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrowers, take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrowers, except as otherwise specifically
provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and any
accrued interest in respect of all Loans, and any and all other indebtedness or
obligations of any and every kind owing by a Credit Party to any of the Lenders
hereunder to be due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
-62-
(c) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, including, without limitation,
all rights and remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees, and
all other indebtedness or obligations owing to the Lenders hereunder shall
immediately become due and payable without the giving of any notice or other
action by the Administrative Agent or the Lenders, which notice or other action
is expressly waived by the Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3. ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including, without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents;
FOURTH, to the payment of all accrued fees and interest
payable to the Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of
the Loans, pro rata, as set forth below;
SIXTH, to all other Obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
-63-
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH," "FIFTH," and
"SIXTH" above.
SECTION 10
AGENCY PROVISIONS
10.1. APPOINTMENT.
Each Lender hereby designates and appoints Bear ▇▇▇▇▇▇▇ Corporate
Lending Inc. as Administrative Agent of such Lender to act as specified herein
and in the other Credit Documents, and each Lender hereby authorizes the
Administrative Agent, as the agent for such Lender, to take such action on its
behalf under the provisions of this Credit Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly
delegated by the terms hereof and of the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere herein and in the other Credit Documents,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Credit Agreement or any of
the other Credit Documents, or shall otherwise exist against the Administrative
Agent. The provisions of this Section are solely for the benefit of the
Administrative Agent and the Lenders and none of the Credit Parties shall have
any rights as a third party beneficiary of the provisions hereof. In performing
its functions and duties under this Credit Agreement and the other Credit
Documents, the Administrative Agent shall act solely as an agent of the Lenders
and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Credit Parties.
10.2. DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3. EXCULPATORY PROVISIONS.
No Agent-Related Person shall be (a) liable for any action lawfully
taken or omitted to be taken by it under or in connection herewith or in
connection with any of the other Credit Documents (except for such Person's own
gross negligence or willful misconduct) or (b) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any of the Credit Parties contained herein or in any of the other Credit
Documents or in any certificate, report, document, financial statement or other
written or oral statement referred to or provided for in, or received by an
Agent-Related Person under or in
-64-
connection herewith or in connection with the other Credit Documents, or the
enforceability or sufficiency of this Credit Agreement or any of the other
Credit Documents, or for any failure of the Credit Parties to perform their
obligations hereunder or thereunder. No Agent-Related Person shall be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by the Credit Parties in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith
furnished or made by an Agent-Related Person to the Lenders or by or on behalf
of the Credit Parties to an Agent-Related Person or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default or to inspect the properties, books
or records of the Credit Parties. No Agent-Related Person is a trustee for the
Lenders or owes any fiduciary duty to the Lenders.
10.4. RELIANCE ON COMMUNICATIONS.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Administrative Agent with reasonable care). The
Administrative Agent may deem and treat each Lender as the owner of its
interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 11.3(b). The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders (or, to the extent
provided in Section 11.6, all of the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense (other than any liability or expense resulting from
the gross negligence or willful misconduct of the Administrative Agent) which
may be incurred by it by reason of taking or continuing to take any such action.
The Agent-Related Persons shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any of the other Credit Documents in
accordance with a request of the Required Lenders (or to the extent specifically
provided in Section 11.6, all the Lenders) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
10.5. NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Credit Party
referring to the applicable Credit Document, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, or otherwise becomes aware of a
Default or Event of Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders (or, to the extent provided in Section 11.6, all of the
Lenders).
-65-
10.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that no Agent-Related Person has
made any representations or warranties to it and that no act by any
Agent-Related Person hereafter taken, including any review of the affairs of any
Credit Party, shall be deemed to constitute any representation or warranty by
any Agent-Related Person or any other Lender. Each Lender represents to the
Administrative Agent and the Arranger that it has, independently and without
reliance upon any Agent-Related Person or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other conditions, prospects and creditworthiness of the Credit Parties and
made its own decision to make its Loans hereunder and enter into this Credit
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Credit Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, no
Agent-Related Person shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
assets, property, financial or other conditions, prospects or creditworthiness
of the Credit Parties which may come into the possession of any Agent-Related
Person.
10.7. INDEMNIFICATION.
The Lenders agree to indemnify each Agent-Related Person (to the extent
not reimbursed by the Credit Parties and without limiting the obligation of the
Credit Parties to do so), ratably according to their respective Commitments (or
if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans of the Lenders), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following payment in full of the Obligations) be imposed on, incurred by or
asserted against such Agent-Related Person in any way relating to or arising out
of this Credit Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such
Agent-Related Person under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent-Related Person. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the Administrative
Agent, be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity (except against its gross negligence or
willful misconduct) is furnished. The agreements in this Section 10.7 shall
survive the payment of the Obligations and all other amounts payable hereunder
and under the other Credit Documents.
-66-
10.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Person serving as the Administrative Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Credit Parties as though the Person serving as the Administrative Agent
were not the Administrative Agent hereunder. With respect to the Loans made, the
Person serving as the Administrative Agent shall have the same rights and powers
under this Credit Agreement as any Lender and may exercise the same as though it
were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Person serving as the Administrative Agent in its individual
capacity.
10.9. SUCCESSOR AGENT.
The Administrative Agent (a) may, at any time, resign upon twenty (20)
days written notice to the Lenders or (b) may be removed, with the consent of
the Borrowers, for willful misconduct or gross negligence by written notice from
the Required Lenders; provided that no consent of the Borrowers shall be
required during the existence and continuation of an Event of Default. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent. In the case of the Administrative
Agent's resignation or removal, if no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within forty-five (45) days after the notice of resignation or
removal, then the retiring Administrative Agent shall select a successor
Administrative Agent provided such successor is a Lender hereunder or an
Eligible Assignee. If no such successor shall have been appointed by the
Administrative Agent, and shall have accepted such appointment, within
forty-five (45) days after such notice of resignation, such notice shall
nevertheless become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor as provided above. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor, if any, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent, and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations as the Administrative Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and the
provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Credit Agreement.
JPMorgan Chase Bank, as syndication agent hereunder, may resign at any
time without any requirement that a successor syndication agent be appointed in
its stead.
-67-
SECTION 11
MISCELLANEOUS
11.1. NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device), (c)
the Business Day following the day on which the same has been delivered prepaid
or on an invoice arrangement to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address or numbers as such party may specify by written
notice to the other parties hereto.
11.2. RIGHT OF SET-OFF.
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 of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by such Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of any Credit Party against obligations and liabilities of such Credit
Party to the Lenders hereunder, under the Notes, the other Credit Documents or
otherwise, irrespective of whether the Administrative Agent or the Lenders shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender
subsequent thereto. The Credit Parties hereby agree that any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to Section 11.3(c)
or 3.7(b) may exercise all rights of set-off with respect to its participation
interest as fully as if such Person were a Lender hereunder.
11.3. BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; provided that none of the Credit Parties may assign and transfer
any of its interests (except as permitted by Section 8.4 or 8.5) without the
prior written consent of the Lenders (and any attempt at such assignment or
transfer without such consent shall be null and void); and provided further that
the rights of each Lender to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth in subsections
(b) and (c) of this Section 11.3. Notwithstanding the above (including anything
set forth in subsections (b) and (c) of this Section 11.3), nothing herein shall
restrict, prevent or prohibit the Administrative Agent or any of its Affiliates
from granting any assignment or participation in any Loan under the terms of
-68-
Section 11.3 hereof; provided, that the consent of the Administrative Agent and
the Borrowers shall not be required for the grant of such assignment or
participation, or shall restrict, prevent or prohibit any Lender from (A)
pledging or assigning a security interest in its rights hereunder or under its
Notes, if any, to secure obligations of such Lender, including any pledge or
assignment to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank; provided that no such pledge or
assignment shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto, or
(B) granting assignments or participations (x) in such Lender's funded Loans
under the terms of Section 11.3 hereof; provided, that the consent of the
Administrative Agent and the Borrowers shall not be required for the grant of
such assignment or participation, (y) in such Lender's Loans and/or Commitments
hereunder to its parent company and/or to any other Affiliate of such Lender or
(z) to any existing Lender or Affiliate thereof.
(b) Assignments. In addition to the assignments permitted by Section
11.3(a), each Lender may, with the prior written consent of the Borrowers and
the Administrative Agent (provided that no consent of the Borrowers shall be
required during the existence and continuation of an Event of Default), which
consent shall not be unreasonably withheld or delayed, assign all or a portion
of its rights and obligations hereunder pursuant to an assignment agreement
substantially in the form of Exhibit 11.3(b) to one or more Eligible Assignees;
provided that (i) any such assignment shall be in a minimum aggregate amount of
$1,000,000 of the Commitments (or the remaining amount of Commitments held by
such Lender) unless otherwise agreed by the Borrowers and Administrative Agent
to reduce such minimum amount and (ii) each such assignment shall be of a
constant, not varying, percentage of all of the assigning Lender's rights and
obligations under the Commitment being assigned. Any assignment hereunder shall
be effective upon satisfaction of the conditions set forth above and delivery to
the Administrative Agent of a duly executed assignment agreement. Upon the
effectiveness of any such assignment, the assignee shall become a "Lender" for
all purposes of this Credit Agreement and the other Credit Documents and, to the
extent of such assignment, the assigning Lender shall be relieved of its
obligations hereunder to the extent of the Loans and Commitment components being
assigned. The Borrowers agree that upon notice of any assignment to an assignee
that was not theretofore a Lender, they will promptly provide to such assignee a
new Note. Each Lender agrees that, in the event it assigns all of its Commitment
hereunder, it shall promptly return the Note or Note(s) executed by the
Borrowers in its favor.
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the
legal and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim and the assignee warrants that it is an Eligible Assignee;
(ii) except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Credit Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto or the financial condition of any Credit
Party or the performance or observance by any Credit Party of any of its
obligations under this Credit Agreement, any of the other Credit Documents or
any other
-69-
instrument or document furnished pursuant hereto or thereto; (iii) such
assigning Lender and such assignee each represents and warrants that it is
legally authorized to enter into such assignment agreement; (iv) such assignee
confirms that it has received a copy of this Credit Agreement, the other Credit
Documents and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such assignment
agreement; (v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers under this Credit Agreement or any other
Credit Document as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Credit Agreement and the other
Credit Documents are required to be performed by it as a Lender.
(c) Participations. In addition to the participations permitted by
Section 11.3(a), each Lender may, without the consent of, or notice to, the
Borrowers or the Administrative Agent, sell, transfer or grant participations in
all or any part of such Lender's interests and obligations hereunder; provided
that (i) such selling Lender shall remain a "Lender" for all purposes under this
Credit Agreement (such selling Lender's obligations under the Credit Documents
remaining unchanged) and the participant shall not constitute a Lender
hereunder, (ii) no such participant shall have, or be granted, rights to approve
any amendment or waiver relating to this Credit Agreement or the other Credit
Documents except to the extent any such amendment or waiver would (A) reduce the
principal of or rate of interest on or fees in respect of any Loans in which the
participant is participating or increase any Commitments with respect thereto,
or (b) postpone the date fixed for any payment of principal (including the
extension of the final maturity of any Loan or the date of any mandatory
prepayment), interest or fees in which the participant is participating, (iii)
sub-participations by the participant (except to an Affiliate of the
participant) shall be prohibited and (iv) any such participations shall be in a
minimum aggregate amount of $1,000,000 of the Commitments and in integral
multiples of $100,000 in excess thereof. In the case of any such participation,
the participant shall not have any rights under this Credit Agreement or the
other Credit Documents (the participant's rights against the selling Lender in
respect of such participation to be those set forth in the participation
agreement with such Lender creating such participation) and all amounts payable
by the Credit Parties hereunder shall be determined as if such Lender had not
sold such participation; provided, however, that such participant shall be
entitled to receive additional amounts under Sections 3.8, 3.11, 3.12 and 3.13
to the same extent that the Lender from which such participant acquired its
participation would be entitled to the benefit of such cost protection
provisions.
(d) The Administrative Agent shall maintain at the Administrative
Agent's office at the Agency Services Address a copy of each assignment
agreement delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive absent manifest
error, and the Borrowers, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Credit Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
-70-
11.4. NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Credit Parties and the
Administrative Agent or any Lender shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5. PAYMENT OF EXPENSES; INDEMNIFICATION.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) each Agent-Related Person in connection with (A) the
negotiation, preparation, execution and delivery, syndication and administration
of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the
Administrative Agent) and (B) any amendment, waiver or consent relating hereto
and thereto including, but not limited to, any such amendments, waivers or
consents resulting from or related to any work-out, renegotiation or restructure
relating to the performance by the Credit Parties under this Credit Agreement,
and (ii) the Agent-Related Persons and the Lenders in connection with (A)
enforcement of the Credit Documents and the documents and instruments referred
to herein and therein, including, without limitation, in connection with any
such enforcement, the reasonable fees and disbursements of counsel for the
Agent-Related Persons and each of the Lenders, and (B) any bankruptcy or
insolvency proceeding of a Credit Party or any of its Subsidiaries, and (b)
indemnify the Agent-Related Persons, each Lender and its officers, directors,
employees, representatives, Affiliates and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not any Agent-Related Person or any Lender is a party thereto) related to (i)
the entering into and/or performance of any Credit Document or the use of
proceeds of any Term Loans or the consummation of any other transactions
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct on the part of the Person
to be indemnified), (ii) any Environmental Claim and (iii) any claims for
Non-Excluded Taxes.
-71-
11.6. AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Credit Parties; provided that
no such amendment, change, waiver, discharge or termination shall without the
written consent of each Lender affected thereby:
(a) extend the final maturity of any Loan or any portion thereof or
postpone any other date fixed for any payment of principal;
(b) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase in
interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) change the Commitment of a Lender from the amount thereof in
effect, other than pursuant to an assignment permitted under Section 3.14 or
11.3(b) or any reduction of the Commitment by the Borrowers pursuant to Section
2.1(f);
(e) release either Borrower from its obligations, or all or
substantially all of the Guarantors from their obligations, under the Credit
Documents; provided that the Administrative Agent may release a Guarantor if an
equity interest in a Guarantor is transferred in accordance with Section 8.5 or
equity is issued in accordance with Section 11.20;
(f) amend, modify or waive any provision of this Section 11.6 or
Section 3.3(b), 3.4(a), 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 5.1, 9.1(a), 11.2,
11.3, 11.5 or 11.10 or any provision of any Credit Document which, by its
express terms, requires the consent, approval, agreement or satisfaction of all
of the Lenders;
(g) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders; or
(h) consent to the assignment or transfer by any Credit Party of any of
its rights and obligations under (or in respect of) the Credit Documents other
than any assignment or transfer by a Guarantor permitted under this Credit
Agreement.
Any amendment, change or waiver of any provision of this Credit Agreement or any
other Credit Document at a time when a Default or Event of Default is in
existence, and that would have the effect of eliminating such Default or Event
of Default, shall not be deemed to be effective for the purpose of determining
whether the conditions precedent set forth in Section 5.1 have been satisfied
unless the Required Lenders shall have consented to such amendment, change or
waiver.
If any amendment, waiver or consent with respect to the Credit Documents has
been delivered in writing to a Lender by the Administrative Agent, and such
amendment, waiver or consent requires only the approval of the Required Lenders
to become effective, then such Lender shall have ten Business Days from the date
of receipt of such amendment, waiver or consent to respond thereto. Failure of a
Lender to timely respond to such amendment, waiver or consent shall be deemed an
approval by such Lender to such amendment, waiver or consent.
-72-
No provision of Section 10 may be amended or modified without the consent of the
Administrative Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding.
11.7. COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8. HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9. DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10. SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, and the repayment of the Loans and other Obligations
and the termination of the Commitments hereunder.
11.11. GOVERNING LAW; JURISDICTION.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the courts of the State of New York in
New York County, or of the United States for the Southern District of New York
and, by execution and delivery of this Credit Agreement, each Credit Party
-73-
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of such courts. Each Credit Party further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at the address for notices
pursuant to Section 11.1, such service to become effective fifteen (15) days
after such mailing. Nothing herein shall affect the right of a Lender to serve
process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against a Credit Party in any other jurisdiction. Each
Credit Party agrees that a final judgment in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law; provided that nothing in this Section
11.11(a) is intended to impair a Credit Party's right under applicable law to
appeal or seek a stay of any judgment.
(b) Each Credit Party 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 Credit Agreement or any
other Credit Document in the courts referred to in subsection (a) hereof 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.
11.12. WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
11.13. TIME.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight Time, as the case may be, unless specified otherwise.
11.14. SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15. ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
-74-
11.16. BINDING EFFECT.
(a) This Credit Agreement shall become effective at such time as all of
the conditions set forth in Section 5.1 have been satisfied or waived by the
Lenders and it shall have been executed by the Credit Parties and the
Administrative Agent, and the Administrative Agent shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the signatures
of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Credit Parties, the Administrative Agent and each
Lender and their respective successors and assigns.
(b) This Credit Agreement shall be a continuing agreement and shall
remain in full force and effect until all Loans, interest, fees and other
Obligations have been paid in full and all Commitments have been terminated.
Upon termination, the Credit Parties shall have no further obligations (other
than the indemnification provisions that survive) under the Credit Documents;
provided that should any payment, in whole or in part, of the Obligations be
rescinded or otherwise required to be restored or returned by the Administrative
Agent or any Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall automatically be
reinstated and all amounts required to be restored or returned and all costs and
expenses incurred by the Administrative Agent or any Lender in connection
therewith shall be deemed included as part of the Obligations.
11.17. CONFIDENTIALITY.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.11 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall prevent
the disclosure of any such information to (a) the extent a Lender in good faith
believes such disclosure is required by Requirement of Law, (b) counsel for a
Lender or to its accountants and other advisors, (c) bank examiners, auditors or
comparable Persons or any regulatory body having jurisdiction over a Lender, (d)
any Affiliate of a Lender, (e) any other Lender, or any assignee, transferee or
participant, or, subject to an agreement containing provisions substantially the
same as those of this Section, (i) any potential assignee, transferee or
participant, of all or any portion of any Lender's rights under this Credit
Agreement who is notified of the confidential nature of the information or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and their obligations, (f) any
other Person in connection with any litigation to which any one or more of the
Lenders is a party or (g) any other Person to whom disclosure of such
information a Lender believes is necessary or appropriate in its reasonable
judgment in connection with the exercise of remedies or enforcement of rights
hereunder; and provided further that no Lender shall have any obligation under
this Section 11.17 to the extent any such information becomes available on a
non-confidential basis from a source other than a Credit Party or that any
information becomes publicly available other than by a breach of this Section
11.17.
-75-
11.18. FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent,
to promptly take such actions as are necessary to carry out the intent of this
Credit Agreement and the other Credit Documents.
11.19. RELEASE OF GUARANTORS.
If a Guarantor issues equity and as a result thereof such Guarantor is
no longer a Material Subsidiary or no longer qualifies as the owner of
Unencumbered Properties, then, as long as no Default or Event of Default exists
after giving effect to the issuance of such equity and the disqualification as
Unencumbered Properties of all properties owned by such Guarantor, the Lenders
agree to release such Guarantor from its obligations hereunder.
11.20. USA PATRIOT ACT.
Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "PATRIOT ACT"), it is required to obtain, verify and
record information that identifies the Borrowers, which information includes the
name and address of the Borrowers and other information that will allow such
Lender to identify the Borrowers in accordance with the Patriot Act.
11.21. LIMITATION ON LIABILITY.
Each Credit Party waives any right to assert or make any claim against
any Lender or the Administrative Agent for (or to ▇▇▇ any Lender or the
Administrative Agent upon any claim for) any special, indirect, incidental,
punitive or consequential damages in respect of any breach or wrongful conduct
(whether the claim is based on contract, tort or duty imposed by law) in
connection with, arising out of or in any way related to this Agreement, any
other Credit Document or the transactions contemplated hereby or thereby, or any
act, omission or event in connection therewith.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK}
-76-
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS: BRANDYWINE REALTY TRUST,
--------- a Maryland real estate investment trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
GUARANTORS: AAPOP 2, L.P., a Delaware limited partnership
----------
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, one of its general partners
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited liability
company, one of its general partners
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE AMBASSADOR, L.P., a Pennsylvania limited partnership
By: Brandywine Ambassador, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE CENTRAL L.P., a Pennsylvania limited partnership
By: Brandywine F.C., L.P., a Pennsylvania limited partnership,
its general partner
By: Brandywine F.C., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE CIRA, L.P., a Pennsylvania limited partnership
By: Brandywine ▇▇▇▇, LLC, a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE F.C., L.P., a Pennsylvania limited partnership
By: Brandywine F.C., L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE GRANDE B, L.P., a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland real estate investment
trust, its general partner
BRANDYWINE I.S., L.P., a Pennsylvania limited partnership
By: Brandywine I.S., L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE METROPLEX, L.P., a Pennsylvania limited partnership
By: Brandywine Metroplex, LLC, a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE P.M., L.P., a Pennsylvania limited partnership
By: Brandywine P.M., L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE ▇▇ ▇▇▇▇▇▇, L.P., a Pennsylvania limited partnership
By: Brandywine ▇▇ ▇▇▇▇▇▇, LLC, a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE TB INN, L.P., a Pennsylvania limited partnership
By: Brandywine TB Inn, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TB I, L.P., a Pennsylvania limited partnership
By: Brandywine TB I, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE ▇▇ ▇▇, L.P., a Pennsylvania limited partnership
By: Brandywine ▇▇ ▇▇, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TB V, L.P., a Pennsylvania limited partnership
By: Brandywine TB V, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TB VI, L.P., a Pennsylvania limited partnership
By: Brandywine TB VI, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TB VIII, L.P., a Pennsylvania limited partnership
By: Brandywine TB VIII, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
C/N IRON RUN LIMITED PARTNERSHIP III, a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
C/N LEEDOM LIMITED PARTNERSHIP II, a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
C/N OAKLANDS LIMITED PARTNERSHIP I, a Pennsylvania limited partnership
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, its general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
C/N OAKLANDS LIMITED PARTNERSHIP III, a Pennsylvania limited
partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
▇-▇▇▇▇▇▇▇.▇▇▇ HOLDING, L.P., a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
FIFTEEN HORSHAM, L.P., a Pennsylvania limited partnership
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, its general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
IRON RUN LIMITED PARTNERSHIP V, a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
LC/N HORSHAM LIMITED PARTNERSHIP, a Pennsylvania limited partnership
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, its general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
LC/N ▇▇▇▇▇ VALLEY LIMITED PARTNERSHIP I, a Pennsylvania limited
partnership
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, its general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
NEWTECH IV LIMITED PARTNERSHIP, a Pennsylvania limited partnership
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, its general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
▇▇▇▇▇▇▇ LANSDALE LIMITED PARTNERSHIP III, a Pennsylvania limited
partnership
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, its general partner
By: Brandywine ▇▇▇▇▇▇ L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
▇▇▇▇▇▇ OPERATING PARTNERSHIP I, L.P., a Delaware limited partnership
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
100 ARRANDALE ASSOCIATES, L.P., a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
111 ARRANDALE ASSOCIATES, L.P., a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ASSOCIATES, L.P., a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ASSOCIATES, L.P., a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ASSOCIATES, L.P., a Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its general partner
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
INTERSTATE CENTER ASSOCIATES, a Virginia general partnership
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, one of its general partners
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
By: Brandywine Interstate 50, L.L.C., a Delaware limited
liability company, one of its general partners
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
IR NORTHLIGHT II ASSOCIATES, a Pennsylvania general partnership
By: AAPOP 2, L.P., a Delaware limited partnership, one of its
general partners
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania
limited liability company, its general
partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a
Maryland real estate
investment trust, its
general partner
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, one of its general partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, one of its general partners
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
PLYMOUTH TFC GENERAL PARTNERSHIP, a Pennsylvania general partnership
By: Brandywine P.M., L.P., a Pennsylvania Limited Partnership,
its general partner
By: Brandywine P.M., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: ▇▇▇▇▇▇ Operating Partnership I, L.P., a Delaware limited
partnership, one of its general partners
By: Brandywine ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE REALTY SERVICES CORPORATION, a Pennsylvania corporation
BTRS, INC., a Delaware corporation
SOUTHPOINT LAND HOLDINGS, INC., a Pennsylvania corporation
VALLEYBROOKE LAND HOLDINGS, INC., a Pennsylvania corporation
BRANDYWINE AMBASSADOR, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE BROKERAGE SERVICES, LLC, a New Jersey limited liability
company
By: Brandywine Realty Services Corporation, a Pennsylvania
corporation, its sole member
BRANDYWINE CHARLOTTESVILLE LLC, a Virginia limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE ▇▇▇▇▇▇▇▇▇ LLC, a Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE ▇▇▇▇, LLC, a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE ▇▇▇▇▇▇, L.L.C., a Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE DOMINION, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE F.C., L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE I.S., L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE INTERSTATE 50, L.L.C., a Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE-MAIN STREET, LLC, a Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, one of its members
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE METROPLEX LLC, a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE P.M., L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE PIAZZA, L.L.C., a New Jersey limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE PLAZA 1000, L.L.C., a New Jersey limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE PROMENADE, L.L.C., a New Jersey limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE ▇▇ ▇▇▇▇▇▇, LLC, a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB INN, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB I, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE ▇▇ ▇▇, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB V, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB VI, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TB VIII, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C., a Delaware limited liability
company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE ▇▇▇▇▇▇, L.L.C., a Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
CHRISTIANA CENTER OPERATING COMPANY III LLC, a Delaware limited
liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
E-TENANTS LLC, a Delaware limited liability company
By: ▇-▇▇▇▇▇▇▇.▇▇▇ Holding, L.P., a Pennsylvania limited
partnership, its sole member
By: Brandywine Operating Partnership, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE GRANDE B, LLC, a Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE GREENTREE V, LLC, a Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a Delaware limited
partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer of
each of the above-named entities
LENDERS: BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as
------- Administrative Agent and individually as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, as Syndication Agent and
individually as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President