EXHIBIT 10.15
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THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of March 11, 1998
among
CARRAMERICA REALTY CORPORATION,
▇▇▇▇ REALTY, L.P.,
CARRAMERICA REALTY, L.P.,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Bank and as Lead Agent for the Banks,
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
as Bank and as Co-Agent for the Banks,
NATIONSBANK, N.A.,
as Bank and as Co-Agent for the Banks,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Bank and as Co-Agent for the Banks,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Bank and as Co-Agent for the Banks,
and
THE BANKS LISTED HEREIN
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS................................................ 2
SECTION 1.1. Definitions.............................................................................. 2
SECTION 1.2. Accounting Terms and Determinations...................................................... 30
SECTION 1.3. Types of Borrowings...................................................................... 30
ARTICLE II
THE CREDITS................................................ 31
SECTION 2.1. Commitments to Lend...................................................................... 31
SECTION 2.2. Notice of Committed Borrowing............................................................ 32
SECTION 2.3. Money Market Borrowings.................................................................. 34
SECTION 2.4. Notice to Banks; Funding of Loans........................................................ 40
SECTION 2.5. Notes.................................................................................... 41
SECTION 2.6. Maturity of Loans........................................................................ 42
SECTION 2.7. Interest Rates........................................................................... 42
SECTION 2.8. Fees..................................................................................... 45
SECTION 2.9. Mandatory Termination.................................................................... 46
SECTION 2.10. Mandatory Prepayment.................................................................... 46
SECTION 2.11. Optional Prepayments.................................................................... 48
SECTION 2.12. General Provisions as to Payments....................................................... 50
SECTION 2.13. Funding Losses.......................................................................... 51
SECTION 2.14. Computation of Interest and Fees........................................................ 52
SECTION 2.15. Method of Electing Interest Rates....................................................... 52
SECTION 2.16. Letters of Credit....................................................................... 53
SECTION 2.17. Letter of Credit Usage Absolute......................................................... 57
ARTICLE III
CONDITIONS................................................. 58
SECTION 3.1. Closing.................................................................................. 58
SECTION 3.2. Borrowings............................................................................... 61
SECTION 3.3 New Acquisitions......................................................................... 62
ARTICLE IV
REPRESENTATIONS AND WARRANTIES....................................... 62
SECTION 4.1. Existence and Power...................................................................... 63
SECTION 4.2. Existence and Power...................................................................... 63
SECTION 4.3. Power and Authority of ▇▇▇▇.............................................................. 63
SECTION 4.4. Power and Authority of ▇▇▇▇ ▇▇........................................................... 63
SECTION 4.5. No Violation............................................................................. 64
SECTION 4.6. Financial Information.................................................................... 64
SECTION 4.7. Litigation............................................................................... 65
SECTION 4.8. Compliance with ERISA.................................................................... 65
SECTION 4.9. Environmental Matters.................................................................... 66
SECTION 4.10. Taxes................................................................................... 66
SECTION 4.11. Full Disclosure......................................................................... 67
SECTION 4.12. Solvency................................................................................ 67
SECTION 4.13. Use of Proceeds; Margin Regulations..................................................... 67
SECTION 4.14. Governmental Approvals.................................................................. 67
SECTION 4.15. Investment Company Act; Public Utility Holding Company Act.............................. 68
SECTION 4.16. Closing Date Transactions............................................................... 68
SECTION 4.17. Representations and Warranties in Loan Documents........................................ 68
SECTION 4.18. Patents, Trademarks, etc................................................................ 68
SECTION 4.19. No Default.............................................................................. 69
SECTION 4.20. Licenses, etc........................................................................... 69
SECTION 4.21. Compliance With Law..................................................................... 69
SECTION 4.22. No Burdensome Restrictions.............................................................. 69
SECTION 4.23. Brokers' Fees........................................................................... 69
SECTION 4.24. Labor Matters........................................................................... 70
SECTION 4.25. Organizational Documents................................................................ 70
SECTION 4.26. Principal Offices....................................................................... 70
SECTION 4.27. REIT Status............................................................................. 70
SECTION 4.28. Ownership of Property................................................................... 70
SECTION 4.29. Insurance............................................................................... 71
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS...........................................71
SECTION 5.1. Information.............................................................................. 71
SECTION 5.2. Payment of Obligations................................................................... 75
SECTION 5.3. Maintenance of Property.................................................................. 76
SECTION 5.4. Conduct of Business...................................................................... 76
SECTION 5.5. Compliance with Laws..................................................................... 76
SECTION 5.6. Inspection of Property, Books and Records................................................ 76
SECTION 5.7. Existence................................................................................ 77
SECTION 5.8. Financial Covenants...................................................................... 77
SECTION 5.9. Restriction on Fundamental Changes....................................................... 79
SECTION 5.10. Changes in Business..................................................................... 79
SECTION 5.11. Fiscal Year; Fiscal Quarter............................................................. 79
SECTION 5.12. Margin Stock............................................................................ 80
SECTION 5.13. Sale of Unencumbered Asset Pool Properties.............................................. 80
SECTION 5.14. Liens................................................................................... 80
SECTION 5.15 Use of Proceeds.......................................................................... 80
SECTION 5.16 Development Activities................................................................... 81
SECTION 5.17 Restrictions on Secured Debt............................................................. 81
SECTION 5.18. ▇▇▇▇'▇ Status........................................................................... 81
SECTION 5.19 Certain Requirements for the Unencumbered Asset Pool Properties.......................... 81
SECTION 5.20 Hedging Requirements..................................................................... 82
SECTION 5.21. Transfer of Real Property Assets......................................................... 82
SECTION 5.22. CarrAmerica Realty GP Holdings, Inc...................................................... 82
ARTICLE VI
DEFAULTS.................................................. 82
SECTION 6.1. Events of Default........................................................................ 82
SECTION 6.2. Rights and Remedies...................................................................... 86
SECTION 6.3. Notice of Default........................................................................ 87
SECTION 6.4. Actions in Respect of Letters of Credit.................................................. 87
ARTICLE VII
THE LEAD AGENT............................................... 90
SECTION 7.1. Appointment and Authorization............................................................ 90
SECTION 7.2. Lead Agent and Affiliates................................................................ 90
SECTION 7.3. Action by Lead Agent..................................................................... 91
SECTION 7.4. Consultation with Experts................................................................ 91
SECTION 7.5. Liability of Lead Agent.................................................................. 91
SECTION 7.6. Indemnification.......................................................................... 91
SECTION 7.7. Credit Decision.......................................................................... 92
SECTION 7.8. Successor Lead Agent..................................................................... 92
SECTION 7.9. Lead Agent's Fee......................................................................... 93
SECTION 7.10. Copies of Notices....................................................................... 93
SECTION 7.11. Removal of Lead Agent.................................................................... 93
ARTICLE VIII
CHANGE IN CIRCUMSTANCES.......................................... 93
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair................................. 93
SECTION 8.2. Illegality............................................................................... 94
SECTION 8.3. Increased Cost and Reduced Return........................................................ 95
SECTION 8.4. Taxes.................................................................................... 96
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans............................... 99
ARTICLE IX
MISCELLANEOUS.............................................. 100
SECTION 9.1. Notices................................................................................. 100
SECTION 9.2. No Waivers...............................................................................100
SECTION 9.3. Expenses; Indemnification................................................................101
SECTION 9.4. Sharing of Set-Offs......................................................................102
SECTION 9.5. Amendments and Waivers...................................................................104
SECTION 9.6. Successors and Assigns...................................................................105
SECTION 9.7. Governing Law; Submission to Jurisdiction................................................108
Section 9.8. Marshalling; Recapture...................................................................109
SECTION 9.9. Counterparts; Integration; Effectiveness.................................................109
SECTION 9.10. WAIVER OF JURY TRIAL....................................................................109
SECTION 9.11. Survival................................................................................110
SECTION 9.12. Domicile of Loans.......................................................................110
SECTION 9.13. Limitation of Liability.................................................................110
SECTION 9.14. Confidentiality.........................................................................110
SECTION 9.15. Co-Agents................................................................................111
SECTION 9.16. No Bankruptcy Proceedings................................................................ 81
Schedule 4.28 - Ownership of Property
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit A-3 Form of Tranche A Designated Lender Note
Exhibit A-4 Form of Tranche B Designated Lender Note
Exhibit B-1 ▇▇▇▇ Unencumbered Asset Pool Properties
Exhibit B-2 ▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties
Exhibit C-1 Assignment and Assumption Agreement
Exhibit D-1 Money Market Quote Request
Exhibit E-1 Invitation for Money Market Quotes
Exhibit F-1 Money Market Quote Request
Exhibit G-1 Designation Agreement
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated
as of March 11, 1998, among CARRAMERICA REALTY CORPORATION ("▇▇▇▇"), ▇▇▇▇
REALTY, L.P. ("▇▇▇▇ ▇▇"; ▇▇▇▇ and ▇▇▇▇ ▇▇ each, a "Borrower" and collectively,
the "Borrowers"), CARRAMERICA REALTY, L.P. ("CarrAmerica LP"), ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK, as Bank and as Lead Agent for the Banks, COMMERZBANK
AKTIENGESELLSCHAFT, NEW YORK BRANCH, as Bank and as Co-Agent for the Banks,
NATIONSBANK, N.A., as Bank and as Co-Agent for the Banks, ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as Bank and as Co-Agent for the Banks, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION (successor by merger to Bank of America
Illinois), as Bank and as Co-Agent for the Banks (collectively, the
"Co-Agents"), and the BANKS listed on the signature pages hereof (the "Banks").
W I T N E S S E T H:
WHEREAS, the Borrowers, CarrAmerica LP and the Lead Agent
entered into the Revolving Credit Agreement , dated as of May 23, 1996 which was
amended and restated by the Borrowers, CarrAmerica LP, the Lead Agent, the
Co-Agents and the Banks as that certain Amended and Restated Revolving Credit
Agreement, dated as of August 23, 1996, as amended by the First Amendment to
Amended and Restated Revolving Credit Agreement, dated as of October 18, 1996,
the Second Amendment to Amended and Restated Revolving Credit Agreement, dated
as of March 31, 1997, the Third Amendment to Amended and Restated Revolving
Credit Agreement, dated as of July 29, 1997, and the Second Amended and Restated
Revolving Credit Agreement, dated as of September 15, 1997 (collectively, the
"Existing Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend and restate
the terms and conditions contained in the Existing Credit Agreement in their
entirety as hereinafter set forth.
1
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I. The Existing Credit Agreement is hereby modified so that
all of the terms and conditions of the aforesaid Existing Credit Agreement shall
be restated in their entirety as set forth herein, and the Borrowers and
CarrAmerica LP agree to comply with and be subject to all of the terms,
covenants and conditions of this Agreement.
II. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns, and
shall be deemed to be effective as of the date hereof.
III. Any reference in the Notes, any other Loan Document or
any other document executed in connection with this Agreement to the Existing
Credit Agreement shall be deemed to refer to this Agreement.
ARTICLE I
DEFINITIONS
SECTION 1.1. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.7(b).
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the Lead Agent and
submitted to the Lead Agent (with a copy to the Borrowers) duly completed by
such Bank.
"Agreement" means this Third Amended and Restated Revolving
Credit Agreement as the same may from time to time hereafter be modified,
supplemented or amended.
2
"Annual EBITDA" means, measured as of the last day of each
calendar quarter, an amount equal to (i) total revenues relating to all Real
Property Assets of the Borrowers and their Consolidated Subsidiaries or to the
Borrowers' interest in Minority Holdings for the previous four consecutive
calendar quarters including the quarter then ended, calculated in accordance
with GAAP, plus (ii) interest and other income of the Borrowers and their
Consolidated Subsidiaries, including, without limitation, real estate service
revenues, for such period, less (iii) total operating expenses and other
expenses relating to such Real Property Assets and to the Borrowers' interest in
Minority Holdings for such period (other than interest, income taxes,
depreciation, amortization, and other non-cash items), less (iv) total corporate
operating expenses (including general overhead expenses) and other expenses of
the Borrowers, their Consolidated Subsidiaries and the Borrowers' interest in
Minority Holdings (other than interest, taxes, depreciation, amortization and
other non-cash items), for such period.
"Applicable Interest Rate" means the lesser of (x) the rate at
which the interest rate applicable to any floating rate Indebtedness could be
fixed, at the time of calculation, by the applicable Borrower entering into an
unsecured interest rate swap agreement (or, if such rate is incapable of being
fixed by entering into an unsecured interest rate swap agreement at the time of
calculation, a reasonably determined fixed rate equivalent), and (y) the rate at
which the interest rate applicable to such floating rate Indebtedness is
actually capped, at the time of calculation, if such Borrower has entered into
an interest rate cap agreement with respect thereto.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the
case of its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" means, with respect to each Loan, the
respective percentages per annum determined based on the range into which the
rating or "shadow" rating on ▇▇▇▇'▇ senior long-term unsecured debt then falls,
in accordance with the following table. Any change in ▇▇▇▇'▇ Investment Grade
3
Rating causing it to move to a different range on the table shall effect an
immediate change in the Applicable Margin. In the event that ▇▇▇▇ receives two
(2) Investment Grade Ratings that are not equivalent, the Applicable Margin
shall be determined by the lower of such two (2) Investment Grade Ratings, at
least one of which shall be an Investment Grade Rating from S&P or ▇▇▇▇▇'▇. In
the event ▇▇▇▇ receives more than two (2) ratings (from S&P, ▇▇▇▇▇'▇, ▇▇▇▇ &
▇▇▇▇▇▇ or Fitch) and such ratings are not equivalent, the Applicable Margin
shall be determined by the lower of the two highest ratings; provided that each
of said two (2) highest ratings shall be Investment Grade Ratings and at least
one of which shall be an Investment Grade Rating from S&P or ▇▇▇▇▇'▇.
Range of Applicable
▇▇▇▇'▇ Margin for Applicable
Credit Rating Base Rate Margin for Euro
(S&P/▇▇▇▇▇'▇ Loans Dollar Loans
Ratings) (% per annum) (% per annum)
-------- ------------- -------------
BBB-/Baa3 0 .85
BBB/Baa2 0 .70
BBB+/Baa1 0 .60
The Applicable Margin for so long as ▇▇▇▇ shall not have
obtained two Investment Grade Ratings (at least one of which shall be from S&P
or ▇▇▇▇▇'▇) or after Borrower loses its Investment Grade Rating, shall be as
follows:
Applicable
Margin for Applicable
Base Rate Margin for Euro
Loans Dollar Loans
------------- -------------
0 1.175
Lead Agent shall notify the Banks in writing promptly after it
obtains knowledge of any change in ▇▇▇▇'▇ Investment Grade Rating which shall
effect a change in the Applicable Margin.
"Assignee" has the meaning set forth in Section 9.6(c).
"Bank" means each bank listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.6(c), and their
respective successors and each Designated Lender; provided, however, that the
4
term "Bank" shall exclude each Designated Lender when used in reference to a
Committed Loan, the Commitments or terms relating to the Committed Loans and the
Commitments and shall further exclude each Designated Lender for all other
purposes hereunder except that any Designated Lender which funds a Money Market
Loan shall, subject to Section 9.6(d), have the rights (including the rights
given to a Bank contained in Section 9.3 and otherwise in Article 9) and
obligations of a Bank associated with holding such Money Market Loan.
"Bankruptcy Code" means Title 11 of the United States Code,
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank
as a Base Rate Loan in accordance with the applicable Notice of Committed
Borrowing or pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means either (i) ▇▇▇▇ and its successors or (ii)
▇▇▇▇ ▇▇ and its successors, and, collectively, "Borrowers" shall mean both
Borrowers.
"Borrowers LTV Ratio" means the ratio, expressed as a
percentage and calculated on a quarterly basis by ▇▇▇▇, of the aggregate amount
of all Unsecured Debt (inclusive of the Loans) of Borrowers, CarrAmerica LP,
their Consolidated Subsidiaries and Borrowers' and CarrAmerica LP's pro rata
share of all Unsecured Debt of any Subsidiaries which are not Consolidated
Subsidiaries outstanding as of the date of determination, to the Unencumbered
Asset Pool Properties Value as of the date of determination.
5
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrowers or CarrAmerica LP at the same time by the Banks pursuant
to Article II. A Borrowing is a "Domestic Borrowing" if such Loans are Base Rate
Loans, a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans or a "Money
Market Borrowing" if such Loans are Money Market Loans.
"Capital Expenditures" means, for any period, the sum of all
expenditures (whether paid in cash or accrued as a liability) by ▇▇▇▇, ▇▇▇▇ ▇▇
or CarrAmerica LP, as applicable, which are capitalized on the consolidated
balance sheet of such Borrower in conformity with GAAP, but less all
expenditures made with respect to the acquisition by ▇▇▇▇ or ▇▇▇▇ ▇▇ and their
Consolidated Subsidiaries of any interest in real property within nine months
after the date such interest in real property is acquired.
"▇▇▇▇ ▇▇ LTV Ratio" means the ratio, expressed as a percentage
and calculated on a quarterly basis by ▇▇▇▇ ▇▇, of the aggregate amount of the
sum of the Tranche B Loans outstanding and all other Unsecured Debt of ▇▇▇▇ ▇▇
and its Consolidated Subsidiaries and ▇▇▇▇ LP's pro rata share of all Unsecured
Debt of any Subsidiaries which are not Consolidated Subsidiaries of ▇▇▇▇ ▇▇ as
of the date of determination, to the ▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties
Value as of the date of determination.
"▇▇▇▇ ▇▇ Maximum Total Debt Ratio" means the ratio as of the
date of determination of (i) the sum of (x) the aggregate Debt of ▇▇▇▇ ▇▇ and
its Consolidated Subsidiaries and (y) ▇▇▇▇ LP's pro rata share of the Debt of
any Subsidiaries of ▇▇▇▇ ▇▇ which are not Consolidated Subsidiaries, at the time
of determination to (ii) ▇▇▇▇ ▇▇ Tangible FMV.
6
"▇▇▇▇ ▇▇ Tangible FMV" means the sum of (x) (i) with respect
to Real Property Assets owned by ▇▇▇▇ ▇▇ or its Consolidated Subsidiaries for a
period of at least six months, the quotient of Net Operating Income with respect
to such Real Property Assets determined as of the last day of the previous
calendar quarter, less reserves for Capital Expenditures of $.50 per square foot
per annum for Real Property Asset, as divided by the FMV Cap Rate, and (ii) with
respect to Real Property Assets owned by ▇▇▇▇ ▇▇ or its Consolidated
Subsidiaries for a period of less than six months, the purchase price of such
Real Property Assets and (y) Cash or Cash Equivalents of ▇▇▇▇ ▇▇ and its
Consolidated Subsidiaries as of the date of determination.
"▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties" means, as of any
date, the Real Property Assets listed in Exhibit B-2 attached hereto and made a
part hereof, each of which is 100% owned in fee (or leasehold in the case of
assets listed as such on Exhibit B-2) by ▇▇▇▇ ▇▇ or any Consolidated Subsidiary
of ▇▇▇▇ ▇▇ and each of which is not subject to any Lien (other than Permitted
Liens), subject to adjustment as set forth herein, together with all New
Acquisitions or Real Property Assets which have become part of the ▇▇▇▇ ▇▇
Unencumbered Asset Pool Properties as of such date in accordance with Section
3.3 and excluding any ▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties which have been
released from this Agreement and the other Loan Documents as of such date in
accordance with Sections 5.13 and 5.14 and all other terms of this Agreement.
"▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties Value" means the
aggregate of (i) with respect to the ▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties
owned by ▇▇▇▇ ▇▇ or any of its Consolidated Subsidiaries for a period of at
least six months, the quotient of (x) Net Operating Income with respect to the
▇▇▇▇ ▇▇ Unencumbered Asset Pool Properties less reserves for Capital
Expenditures of $.50 per square foot per annum for each ▇▇▇▇ ▇▇ Unencumbered
Asset Pool Property and (y) the FMV Cap Rate and (ii) with respect to the ▇▇▇▇
▇▇ Unencumbered Asset Pool Properties owned by ▇▇▇▇ ▇▇ or any of its
Consolidated Subsidiaries for a period of less than six months, the lesser of
(A) the quotient of (x) Net Operating Income with respect to the ▇▇▇▇ ▇▇
Unencumbered Asset Pool Properties less reserves for Capital Expenditures of
$.50 per square foot per annum for each ▇▇▇▇ ▇▇ Unencumbered Asset Pool Property
and (y) the FMV Cap Rate and (B) the purchase price of such ▇▇▇▇ ▇▇ Unencumbered
Asset Pool Property.
"▇▇▇▇ LTV Ratio" means the ratio, expressed as a percentage
and calculated on a quarterly basis by ▇▇▇▇, of the aggregate amount of the sum
of the Tranche A Loans and all other Unsecured Debt of ▇▇▇▇ and its Consolidated
Subsidiaries (other than ▇▇▇▇ ▇▇) and ▇▇▇▇'▇ pro rata share of all Unsecured
Debt of any Subsidiaries which are not Consolidated Subsidiaries of ▇▇▇▇,
outstanding as of the date of determination, to the ▇▇▇▇ Unencumbered Asset Pool
Properties Value as of the date of determination.
7
"▇▇▇▇ Maximum Total Debt Ratio" means the ratio as of the date
of determination of (i) the sum of (x) the aggregate Debt of ▇▇▇▇ and its
Consolidated Subsidiaries (other than ▇▇▇▇ ▇▇) and (y) ▇▇▇▇'▇ pro rata share of
the Debt of any Subsidiaries of ▇▇▇▇ which are not Consolidated Subsidiaries, at
the time of determination to (ii) ▇▇▇▇ Tangible FMV.
"▇▇▇▇ Tangible FMV" means the sum of (x) (i) with respect to
Real Property Assets owned by ▇▇▇▇ or its Consolidated Subsidiaries (other than
▇▇▇▇ ▇▇) for a period of at least six months, the quotient of Net Operating
Income with respect to such Real Property Assets determined as of the last day
of the previous calendar quarter, less reserves for Capital Expenditures of $.50
per square foot per annum for each Real Property Asset, as divided by the FMV
Cap Rate, and (ii) with respect to Real Property Assets owned by ▇▇▇▇ or its
Consolidated Subsidiaries (other than ▇▇▇▇ ▇▇) for a period of less than six
months, the purchase price of such Real Property Assets and (y) Cash or Cash
Equivalents of ▇▇▇▇ and its Consolidated Subsidiaries (other than ▇▇▇▇ ▇▇) as of
the date of determination.
"▇▇▇▇ Unencumbered Asset Pool Properties" means, as of any
date, the Real Property Assets listed in Exhibit B-1 attached hereto and made a
part hereof, each of which is 100% owned in fee (or leasehold in the case of
assets listed as such on Exhibit B-1) by ▇▇▇▇ or any Consolidated Subsidiary of
▇▇▇▇ (other than ▇▇▇▇ ▇▇) and each of which is not subject to any Lien (other
than Permitted Liens), subject to adjustment as set forth herein, together with
all New Acquisitions or Real Property Assets which have become part of the ▇▇▇▇
Unencumbered Asset Pool Properties as of such date in accordance with Section
3.3 and excluding any ▇▇▇▇ Unencumbered Asset Pool Properties which have been
released from this Agreement and the other Loan Documents as of such date in
accordance with Sections 5.13 and 5.14 and all other terms of this Agreement.
"▇▇▇▇ Unencumbered Asset Pool Properties Value" means the
aggregate of (i) with respect to the ▇▇▇▇ Unencumbered Asset Pool Properties
owned by ▇▇▇▇ or any of its Consolidated Subsidiaries (other than ▇▇▇▇ ▇▇) for a
period of at least six months, the quotient of (x) Net Operating Income with
respect to the ▇▇▇▇ Unencumbered Asset Pool Properties less reserves for Capital
Expenditures of $.50 per square foot per annum for each ▇▇▇▇ Unencumbered Asset
Pool Property and (y) the FMV Cap Rate and (ii) with respect to the ▇▇▇▇
Unencumbered Asset Pool Properties owned by ▇▇▇▇ or any of its Consolidated
Subsidiaries (other than ▇▇▇▇ ▇▇) for a period of less than six months, the
lesser of (A) the quotient of (x) Net Operating Income with respect to the ▇▇▇▇
Unencumbered Asset Pool Properties less reserves of $.50 per square foot per
annum for each ▇▇▇▇ Unencumbered Asset Pool Property and (y) the FMV Cap Rate
and (B) the purchase price of such ▇▇▇▇ Unencumbered Asset Pool Property.
8
"Cash or Cash Equivalents" means (i) cash, (ii) direct
obligations of the United States Government, including, without limitation,
treasury bills, notes and bonds, (iii) interest bearing or discounted
obligations of Federal agencies and Government sponsored entities or pools of
such instruments offered by banks rated AA or better by S&P or Aa2 by ▇▇▇▇▇'▇
and dealers, including, without limitation, Federal Home Loan Mortgage
Corporation participation sale certificates, Government National Mortgage
Association modified pass-through certificates, Federal National Mortgage
Association bonds and notes, Federal Farm Credit System securities, (iv) time
deposits, domestic and Eurodollar certificates of deposit, bankers acceptances,
commercial paper rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇, and/or guaranteed
by an Aa rating by ▇▇▇▇▇'▇, an AA rating by S&P, or better rated credit,
floating rate notes, other money market instruments and letters of credit each
issued by banks which have a long-term debt rating of at least AA by S&P or Aa2
by ▇▇▇▇▇'▇, (v) obligations of domestic corporations, including, without
limitation, commercial paper, bonds, debentures, and loan participations, each
of which is rated at least AA by S&P, and/or Aa2 by ▇▇▇▇▇'▇, and/or
unconditionally guaranteed by an AA rating by S&P, an Aa2 rating by ▇▇▇▇▇'▇, or
better rated credit, (vi) obligations issued by states and local governments or
their agencies, rated at least MIG-1 by ▇▇▇▇▇'▇ and/or SP-1 by S&P and/or
guaranteed by an irrevocable letter of credit of a bank with a long-term debt
rating of at least AA by S&P or Aa2 by ▇▇▇▇▇'▇, (vii) repurchase agreements with
major banks and primary government securities dealers fully secured by U.S.
Government or agency collateral equal to or exceeding the principal amount on a
daily basis and held in safekeeping, and (viii) real estate loan pool
participations, guaranteed by an entity with an AA rating given by S&P or an Aa2
rating given by ▇▇▇▇▇'▇, or better rated credit.
"Closing Date" means the date on which the Lead Agent shall
have received the documents specified in or pursuant to Section 3.1.
"Commitment" means, collectively, the Tranche A Commitment and
the Tranche B Commitment with respect to each Bank.
"Committed Loan" means a Loan made by a Bank pursuant to
Section 2.1; provided that, if any such Loan or Loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
9
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity which is consolidated with either Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the
consolidated stockholders' equity of ▇▇▇▇ (determined on a book basis), less its
consolidated Intangible Assets, all determined as of such date. For purposes of
this definition "Intangible Assets" means with respect to any such intangible
assets, the amount (to the extent reflected in determining such consolidated
stockholders' equity) of all write-ups subsequent to December 31, 1995 in the
book value of any asset owned by either Borrower or a Consolidated Subsidiary
and (ii) goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry forwards, copyrights, organization or
developmental expenses and other intangible assets.
"Contingent Obligation" as to any Person means, without
duplication, (i) any contingent obligation of such Person required to be shown
on such Person's balance sheet in accordance with GAAP, and (ii) any obligation
required to be disclosed in the footnotes to such Person's financial statements,
guaranteeing partially or in whole any non-recourse Debt, lease, dividend or
other obligation, exclusive of contractual indemnities (including, without
limitation, any indemnity or price-adjustment provision relating to the purchase
or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income
guaranty, the sum of all payments required to be made thereunder (which in the
case of an operating income guaranty shall be deemed to be equal to the debt
service for the note secured thereby), calculated at the Applicable Interest
Rate, through (i) in the case of an interest or interest and principal guaranty,
the stated date of maturity of the obligation (and commencing on the date
interest could first be payable thereunder), or (ii) in the case of an operating
income guaranty, the date through which such guaranty will remain in effect, and
10
(b) with respect to all guarantees not covered by the preceding clause (a), an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as recorded on the balance sheet and
on the footnotes to the most recent financial statements of the applicable
Borrower required to be delivered pursuant to Section 5.1 hereof.
Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a
claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to the
applicable Borrower), the amount of the guaranty shall be deemed to be 100%
thereof unless and only to the extent that such other Person has delivered Cash
or Cash Equivalents to secure all or any part of such Person's guaranteed
obligations, (ii) in the case of joint and several guarantees given by a Person
in whom the applicable Borrower owns an interest (which guarantees are
non-recourse to the applicable Borrower), to the extent the guarantees, in the
aggregate, exceed 15% of total real estate investments, the amount in excess of
15% shall be deemed to be a Contingent Obligation of the applicable Borrower,
and (iii) in the case of a guaranty (whether or not joint and several) of an
obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of the
obligation constituting Debt of such Person. Notwithstanding anything contained
herein to the contrary, "Contingent Obligations" shall not be deemed to include
guarantees of Unused Commitments or of construction loans to the extent the same
have not been drawn.
"Credit Rating" means the ratings assigned by not less than
two of the Rating Agencies (at least one of which shall be S&P) to ▇▇▇▇'▇ senior
long-term unsecured indebtedness.
"Debt" of any Person means, without duplication, (A) as shown
on such Person's consolidated balance sheet (i) all indebtedness of such Person
for borrowed money or for the deferred purchase price of property and, (ii) all
11
indebtedness of such Person evidenced by a note, bond, debenture or similar
instrument (whether or not disbursed in full in the case of a construction
loan), (B) the face amount of all letters of credit issued for the account of
such Person and, without duplication, all unreimbursed amounts drawn thereunder,
(C) all Contingent Obligations of such Person, (D) all payment obligations of
such Person under any interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars and similar
agreements) and currency swaps and similar agreements which were not entered
into specifically in connection with Debt set forth in clauses (A), (B) or (C)
hereof. For purposes of this Agreement, Debt (other than Contingent Obligations)
of the applicable Borrower shall be deemed to include only the applicable
Borrower's pro rata share (such share being based upon the applicable Borrower's
percentage ownership interest as shown on the applicable Borrower's annual
audited financial statements) of the Debt of any Person in which the applicable
Borrower, directly or indirectly, owns an interest, provided that such Debt is
nonrecourse, both directly and indirectly, to the applicable Borrower.
"Debt Service" means, measured as of the last day of each
calendar quarter, an amount equal to the sum of (i) interest (whether accrued,
paid or capitalized) actually payable by either Borrower or the Borrowers on its
Debt for the previous four consecutive quarters including the quarter then
ended, plus (ii) scheduled payments of principal on such Debt, whether or not
paid by either Borrower or the Borrowers (excluding balloon payments) for the
previous four consecutive quarters including the quarter then ended.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Designated Lender" means a special purpose corporation that
(i) shall have become a party to this Agreement pursuant to Section 9.6(d), and
(ii) is not otherwise a Bank.
"Designated Lender Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A-3 and Exhibit A-4 hereto,
12
evidencing the obligation of the Borrower to repay Money Market Loans made by
Designated Lenders, and "Designated Lender Note" means any one of such
promissory notes issued under Section 9.6(d) hereof.
"Designating Lender" has the meaning set forth in Section
9.6(d) hereof.
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit G attached hereto, entered into by a Bank and
a Designated Lender and accepted by the Lead Agent.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in New York City are authorized by
law to close.
"Domestic Lending Office" means, as to each Bank, its office
located within the United States at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office within the United States as such Bank may
hereafter designate as its Domestic Lending Office by notice to the Borrowers
and the Lead Agent.
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Co. or any
successor thereto.
"Environmental Affiliate" means any partnership, or joint
venture, trust or corporation in which an equity interest is owned by either
Borrower or CarrAmerica LP, either directly or indirectly.
"Environmental Approvals" means any permit, license, approval,
ruling, variance, exemption or other authorization required under applicable
Environmental Laws.
13
"Environmental Claim" means, with respect to any Person, any
notice, claim, demand or similar communication (written or oral) by any other
Person alleging potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damage, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned by such Person or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law, in each case as to which there is a reasonable likelihood
of an adverse determination with respect thereto and which, if adversely
determined, would have a Material Adverse Effect.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
hazardous wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Substances or
hazardous wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrowers, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrowers or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
"Euro-Dollar Borrowing" has the meaning set forth in Section
1.3.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
14
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Bank as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrowers and the Lead Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank
as a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing or Notice of Interest Rate Election.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.7(b).
"Event of Default" has the meaning set forth in Section 6.1.
"Facility Fee" has the meaning set forth in Section 2.8(a).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company
of New York on such day on such transactions as determined by the Lead Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
"FFO" means "funds from operations," defined to mean net
income (loss) (computed in accordance with GAAP), excluding gains (or losses)
from debt restructurings and sales of properties, plus depreciation and
amortization, after adjustments for Minority Holdings. Adjustments for Minority
Holdings will be calculated to reflect FFO on the same basis.
"Fitch" means Fitch Investors Services, L.P. or any successor
thereto.
15
"FMV Cap Rate" means 9%.
"Fronting Bank" shall mean ▇▇▇▇▇▇ or such other Bank which
Borrower is notified by the Lead Agent may be a Fronting Bank and which is
designated by Borrower in its Notice of Borrowing as the Bank which shall issue
a Letter of Credit with respect to such Notice of Borrowing.
"GAAP" means generally accepted accounting principles
recognized as such in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Group of Loans" means, at any time, a group of Loans
consisting of (i) all Committed Loans which are Base Rate Loans at such time or
(ii) all Committed Loans which are Euro-Dollar Loans having the same Interest
Period at such time; provided that, if a Committed Loan of any particular Bank
is converted to or made as a Base Rate Loan pursuant to Section 8.2 or 8.4, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
"Hazardous Substances" means any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing specified in the
Notice of Committed Borrowing or the date of continuation or conversion
specified in the Notice of Interest Rate Election, as the case may be, and
ending one, two, three or six months thereafter, as each Borrower or CarrAmerica
16
LP, as the case may be, may elect in the applicable Notice of Committed
Borrowing or in the Notice of Interest Rate Election; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) if any Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each Euro-Dollar Loan required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the remainder (if any) of
each such Euro-Dollar Loan shall have an Interest Period determined as
set forth above.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing specified in the Notice of Committed Borrowing or the date of
conversion specified in the Notice of Interest Rate Election, as the case may
be, and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (c)(i) above) which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to
the next succeeding Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each Base Rate Loan required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the remainder (if any) of
each such Base Rate Loan shall have an Interest Period determined as
set forth above.
17
(3) with respect to each Money Market LIBOR Loan, the period commencing on the
date of such Borrowing specified in the applicable Notice of Money Market
Borrowing and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable Notice of Money Market Borrowing in accordance with
Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each Money Market LIBOR Loan required to be repaid on such date shall
have an Interest Period ending on such date, and (ii) the remainder (if
any) of each such Money Market LIBOR Loan shall have an Interest Period
determined as set forth above; and
(d) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
(4) with respect to each Money Market Absolute Rate Loan, the period commencing
on the date of such Borrowing specified in the applicable Notice of Money Market
Borrowing and ending such number of days thereafter (but not less than 14 days
18
or more than 180 days) as the Borrower may elect in the applicable Notice of
Money Market Borrowing in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each Money Market Absolute Rate Loan required to be repaid on such date
shall have an Interest Period ending on such date, and (ii) the
remainder (if any) of each such Money Market Absolute Rate Loan shall
have an Interest Period determined as set forth above; and
(c) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt, or if no such rating has been issued, a "shadow"
rating, of BBB- or better from S&P, and a rating or "shadow" rating of Baa3 or
better from ▇▇▇▇▇'▇ or a rating or "shadow" rating equivalent to the foregoing
from either Duff & ▇▇▇▇▇▇ or Fitch. Any such "shadow" rating shall be evidenced
by a letter from the applicable Rating Agency or by such other evidence as may
be reasonably acceptable to the Lead Agent (as to any such other evidence, the
Lead Agent shall present the same to, and discuss the same with, the Banks).
"Invitation for Money Market Quotes" has the meaning set forth
in Section 2.3.
"Lead Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
in its capacity as Lead Agent for the Banks hereunder, and its successors in
such capacity.
"Letter(s) of Credit" has the meaning provided in Section
2.2(b).
"Letter of Credit Collateral" has the meaning provided in
Section 6.4.
"Letter of Credit Collateral Account" has the meaning provided
in Section 6.4.
19
"Letter of Credit Documents" has the meaning provided in
Section 2.17.
"Letter of Credit Usage" means at any time the sum of (i) the
aggregate maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
therein, and (ii) the aggregate amount of the Borrowers' unpaid obligations
under this Agreement in respect of the Letters of Credit.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.3.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, each of
the Borrowers or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Money
Market Loan and "Loans" means Base Rate Loans, Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"Loan Amount" means the aggregate of the Tranche A Loan Amount
and the Tranche B Loan Amount.
"Loan Documents" means this Agreement, the Notes, Letters of
Credit and Letter of Credit Documents.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.7(b).
"Margin Stock" shall have the meaning provided such term in
Regulation U and Regulation G of the Federal Reserve Board.
20
"Material Adverse Effect" means a material adverse effect upon
(i) the business, operations, properties or assets of either Borrower or (ii)
the ability of either Borrower to perform its obligations hereunder in all
material respects, including to pay interest and principal.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $5,000,000.
"Materials of Environmental Concern" means and includes
pollutants, contaminants, hazardous wastes, toxic and hazardous substances,
petroleum and petroleum by-products.
"Maturity Date" has the meaning set forth in Section 2.9.
"Maximum Total Debt Ratio" means the ratio as of the date of
determination of (i) the sum of (x) the aggregate Debt of the Borrowers and
their Consolidated Subsidiaries and (y) the Borrowers' pro rata share of the
Debt of any Subsidiaries of the Borrowers which are not Consolidated
Subsidiaries, at the time of determination to (ii) the Tangible FMV of the
Borrowers and their Consolidated Subsidiaries.
"Minority Holdings" means partnerships, limited liability
companies and corporations held or owned by either Borrower which are not
consolidated with such Borrower on such Borrower=s financial statements, other
than Bond Texas Limited Partnership and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Associates.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.3(d).
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
21
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Borrower and the Lead Agent; provided that any Bank may from time to time by
notice to the Borrower and the Lead Agent designate separate Money Market
Lending Offices for its Money Market LIBOR Loans, on the one hand, and its Money
Market Absolute Rate Loans, on the other hand, in which case all references
herein to the Money Market Lending Office of such Bank shall be deemed to refer
to either or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 2.3).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.3.
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.3.
"Money Market Quote Request" has the meaning set forth in
Section 2.3.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor thereto.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, in
its individual capacity.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Net Offering Proceeds" means all cash or other assets
received by ▇▇▇▇ or ▇▇▇▇ ▇▇ as a result of the sale of common shares of
beneficial interest, preferred shares of beneficial interest, partnership
interests, limited liability company interests, Convertible Securities or other
ownership or equity interests in ▇▇▇▇ or ▇▇▇▇ ▇▇ less customary costs and
discounts of issuance paid by ▇▇▇▇ or ▇▇▇▇ ▇▇, as the case may be.
22
"Net Operating Cash Flow" means, as of any date of
determination, with respect to all Real Property Assets and Minority Holdings of
▇▇▇▇ and its Consolidated Subsidiaries, the product of (A) Property Income for
the previous quarter in the case of all Real Property Assets of ▇▇▇▇ and its
Consolidated Subsidiaries, and ▇▇▇▇'▇ pro rata share in the case of Minority
Holdings, but less (x) Property Expenses (or in the case of Minority Holdings,
▇▇▇▇'▇ pro rata share thereof) for the previous quarter and (y) the greater of
(i) Capital Expenditures which are not related to new construction for the
previous quarter, and (ii) reserves for such quarter for Capital Expenditures of
$1.50 per square foot per annum for each Real Property Asset, and (B) four (4).
"Net Operating Income" means as of any date of determination
with respect to any Real Property Asset, the product of (A) Property Income for
the previous quarter, but less Property Expenses for the previous quarter and
(B) four (4).
"New Acquisition" has the meaning set forth in Section 5.15.
"Non-Recourse Debt" means Debt of either Borrower on a
consolidated basis for which the right of recovery of the obligee thereof is
limited to recourse against the Real Property Assets securing such Debt (subject
to such limited exceptions to the non-recourse nature of such Debt such as
fraud, misappropriation, misapplication and environmental indemnities, as are
usual and customary in like transactions at the time of the incurrence of such
Debt).
"Notes" means collectively, the Tranche A Notes, the Tranche B
Notes, and any Designated Lender Notes.
"Notice of Borrowing" means a Notice of Committed Borrowing
(as defined in Section 2.2 and 2.3) or a Notice of Money Market Borrowing (as
defined in Section 2.3(f)).
"Notice of Interest Rate Election" has the meaning set forth
in Section 2.15 hereof.
"Obligations" means all obligations, liabilities and
indebtedness of every nature of the Borrowers or CarrAmerica LP, from time to
time owing to any Bank under or in connection with this Agreement or any other
Loan Document, including, without limitation, (i) the outstanding principal
amount of the Committed Loans at such time, plus (ii) the Letter of Credit Usage
at such time, plus (iii) the outstanding principal amount of any Money Market
Loans at such time.
23
"Outstanding Balance" means the sum of (i) the aggregate
outstanding and unpaid principal balance of all Loans and (ii) the Letter of
Credit Usage.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) Liens in favor of either or both
of the Borrowers or CarrAmerica LP on all or any part of the assets of
Subsidiaries of either Borrower or CarrAmerica LP, provided that (i) such
Subsidiary shall be a co-maker of the Tranche A Notes or Tranche B Notes, as
applicable, (ii) the Debt to which such Lien relates is held by a Borrower or
CarrAmerica LP, (iii) such Debt is not otherwise pledged or encumbered and (iv)
no more than 25% of the Unencumbered Asset Pool Properties Value may be subject
to any such Liens; (b) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds, completion bonds, government
contracts or other obligations of a like nature, including Liens in connection
with workers' compensation, unemployment insurance and other types of statutory
obligations or to secure the performance of tenders, bids, leases, contracts
(other than for the repayment of Debt) and other similar obligations incurred in
the ordinary course of business; (c) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided, that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (d)
Liens on property of either Borrower or any Subsidiary thereof in favor of the
Federal or any state government to secure certain payments pursuant to any
contract, statute or regulation; (e) easements (including, without limitation,
reciprocal easement agreements and utility agreements), rights of way,
covenants, consents, reservations, encroachments, variations and zoning and
other restrictions, charges or encumbrances (whether or not recorded), which do
not interfere materially with the ordinary conduct of the business of the
applicable Borrower or any Subsidiary thereof and which do not materially
detract from the value of the property to which they attach or materially impair
the use thereof by the applicable Borrower or Subsidiary; (f) statutory Liens of
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
Liens imposed by law and arising in the ordinary course of business, for sums
not then due and payable (or which, if due and payable are being contested in
24
good faith and with respect to which adequate reserves are being maintained to
the extent required by GAAP); (g) Liens not otherwise permitted by this
definition and incurred in the ordinary course of business of either or both of
the Borrowers or any Subsidiary with respect to obligations which do not exceed
$2,000,000 in principal amount in the aggregate at any one time outstanding; (h)
Liens existing on the date of this Agreement which have been disclosed on
Schedule 4.28; (i) the interests of lessees and lessors under leases of real or
personal property made in the ordinary course of business which would not have a
material adverse effect on the Borrowers and their Subsidiaries taken as a
whole; and (j) judgment and attachment Liens not giving rise to an Event of
Default.
"Permitted LTV Ratio" means, with respect to the Borrowers'
LTV Ratio, the ▇▇▇▇ LTV Ratio and the ▇▇▇▇ ▇▇ LTV Ratio, a ratio, expressed as a
percentage, which is 50% or lower.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by
▇▇▇▇▇▇ Guaranty Trust Company of New York in New York City from time to time as
its Prime Rate.
25
"Pro-Forma Debt Service" means the amount determined by
applying a 25 year mortgage style amortization schedule to all Unsecured Debt of
the Borrowers, CarrAmerica LP and their Consolidated Subsidiaries and their pro
rata share of all Unsecured Debt of Subsidiaries that are not Consolidated
Subsidiaries outstanding as of the last day of each calendar quarter, using an
interest rate equal to the greater of (i) the Treasury Rate plus 1.75%, and (ii)
the actual rate of interest in effect with respect to such Unsecured Debt as of
the last day of such quarter, all determined on an annualized basis.
"Property Expenses" means, when used with respect to any Real
Property Asset, the costs of maintaining and operating such Real Property Asset,
calculated in accordance with GAAP, which are the responsibility of the owner
thereof and that are not paid directly by the tenant thereof, including, without
limitation, real estate taxes, insurance, repairs and maintenance, but provided
that if such tenant is more than 60 days in arrears in the payment of base or
fixed rent, then such costs will also constitute "Property Expenses", but
excluding depreciation, amortization and interest costs.
"Property Income" means, when used with respect to any Real
Property Asset, rents and other revenues earned in accordance with GAAP, in the
ordinary course therefrom, including, without limitation, revenues from any
parking leases and lease termination fees amortized over the remaining term of
the lease for which such termination fee was received (other than the paid rents
and revenues and security deposits except to the extent applied in satisfaction
of tenants' obligations for rent).
"Rating Agencies" means, collectively, S&P, Moody's, ▇▇▇▇ &
▇▇▇▇▇▇ and Fitch.
"Real Property Assets" means as of any time, the real property
assets (including interests in participating mortgages in which either
Borrower's interest therein is characterized as equity according to GAAP) owned
directly or indirectly by either Borrower at such time.
26
"Recourse Debt" shall mean Debt of the Borrower or any
Consolidated Subsidiary that is not Non-Recourse Debt.
"Reference Bank" means the principal London offices of ▇▇▇▇▇▇
Guaranty Trust Company of New York.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments shall have
been terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans.
"Solvent" means, with respect to any Person, that the fair
saleable value of such Person's assets exceeds the Debts of such Person.
"S&P" means Standard & Poor's Ratings Group, or any successor
thereto.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests representing either (i) ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions or (ii) a majority of the economic interest therein, are at
the time directly or indirectly owned by ▇▇▇▇ or ▇▇▇▇ ▇▇.
"Tangible FMV" means the aggregate of (i) ▇▇▇▇ Tangible FMV
and (ii) ▇▇▇▇ ▇▇ Tangible FMV.
"Term" has the meaning set forth in Section 2.9.
"Third Amendment" has the meaning set forth in Section 5.4.
27
"Tranche A Commitment" means, with respect to each Bank, the
amount committed by such Bank pursuant to this Agreement with respect to any
Tranche A Loans, as such amount may be reduced from time to time pursuant to
Sections 2.10 and 2.11.
"Tranche A Loan" means the loan or loans to be made to ▇▇▇▇
and CarrAmerica LP for the purposes set forth in Section 5.15 hereof which loan
or loans shall be a Base Rate Loan or Loans, a Euro-Dollar Loan or Loans, or a
Money Market Loan or Loans.
"Tranche A Loan Amount" has the meaning set forth in Section
2.1.
"Tranche A Notes" means the promissory notes of ▇▇▇▇ and
CarrAmerica LP, each substantially in the form of Exhibits A-1 or A-3 hereto,
evidencing the joint and several obligation of ▇▇▇▇ and CarrAmerica LP to repay
the Tranche A Loans, and "Tranche A Note" means any one of such promissory notes
issued hereunder.
"Tranche B Commitment" means, with respect to each Bank, the
amount committed by such Bank pursuant to this Agreement with respect to any
Tranche B Loans, as such amount may be reduced from time to time pursuant to
Sections 2.10 and 2.11.
"Tranche B Loan" means the loan or loans to be made to ▇▇▇▇ ▇▇
and ▇▇▇▇ for the purposes set forth in Section 5.15 hereof which loan or loans
shall be a Base Rate Loan or Loans, a Euro-Dollar Loan or Loans, or a Money
Market Loan or Loans.
"Tranche B Loan Amount" has the meaning set forth in Section
2.1.
"Tranche B Notes" means the promissory notes of ▇▇▇▇ ▇▇ and
▇▇▇▇, each substantially in the form of Exhibits A-2 or A-4 hereto, evidencing
the joint and several obligation of ▇▇▇▇ ▇▇ and ▇▇▇▇ to repay the Tranche B
Loans, and "Tranche B Note" means any one of such promissory notes issued
hereunder.
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"Treasury Rate" means, as of any date, a rate equal to the
annual yield to maturity on the U.S. Treasury Constant Maturity Series with a
ten year maturity, as such yield is reported in Federal Reserve Statistical
Release H.15 -- Selected Interest Rates, published most recently prior to the
date the applicable Treasury Rate is being determined. Such yield shall be
determined by straight line linear interpolation between the yields reported in
Release H.15, if necessary. In the event Release H.15 is no longer published,
the Lead Agent shall select, in its reasonable discretion, an alternate basis
for the determination of Treasury yield for U.S. Treasury Constant Maturity
Series with ten year maturities.
"Unencumbered Asset Pool Net Operating Cash Flow" means as of
any date of determination with respect to the Unencumbered Asset Pool
Properties, the product of (A) Property Income with respect to the Unencumbered
Assets for the previous quarter, but less (x) Property Expenses with respect to
the Unencumbered Asset Pool Properties for the previous quarter and (y) the
greater of (i) Capital Expenditures which are not related to new construction
for the previous quarter and (ii) reserves for such quarter for Capital
Expenditures of $1.50 per square foot per annum for each Unencumbered Asset Pool
Property, and (B) four (4). For purposes of Section 5.1(m) hereof, the
calculation of Unencumbered Asset Pool Net Operating Cash Flow shall be made
separately as to each Unencumbered Asset Pool Property.
"Unencumbered Asset Pool Properties" means, as of any date,
collectively the ▇▇▇▇ Unencumbered Asset Pool Properties and the ▇▇▇▇ ▇▇
Unencumbered Asset Pool Properties.
"Unencumbered Asset Pool Minimum Debt Service Coverage" means
as of the last day of each calendar quarter, Unencumbered Asset Pool Net
Operating Cash Flow equal to or greater than 200% of Pro-Forma Debt Service.
"Unencumbered Asset Pool Properties Value" means the aggregate
of (i) the ▇▇▇▇ Unencumbered Asset Pool Properties Value and (ii) the ▇▇▇▇ ▇▇
Unencumbered Asset Pool Properties Value.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
29
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA Group
to the PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
"Unsecured Debt" means all Debt which is not secured by a
Lien.
"Unused Commitments" means an amount equal to all unadvanced
funds (other than unadvanced funds in connection with any construction loan)
which any third party is obligated to advance to either of the Borrowers or
otherwise, pursuant to any loan document, written instrument or otherwise.
SECTION 1.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Borrowers' independent public accountants) with the most recent audited
consolidated financial statements of ▇▇▇▇ delivered to the Lead Agent and the
Banks; provided that, if ▇▇▇▇ notifies the Lead Agent and the Banks that ▇▇▇▇
wishes to amend any covenant in Article V to eliminate the effect of any change
in generally accepted accounting principles on the operation of such covenant
(or if the Lead Agent notifies ▇▇▇▇ that the Required Banks wish to amend
Article V for such purpose), then ▇▇▇▇'▇ compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to ▇▇▇▇ and the Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes
the aggregation of Loans of one or more Banks to be made to the Borrowers
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement either by reference to
the pricing of Loans comprising such
30
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.1 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.3.
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees,
on the terms and conditions set forth in this Agreement, to make the Tranche A
Loans to ▇▇▇▇ and CarrAmerica LP and participate in Letters of Credit issued by
the Fronting Bank on behalf of ▇▇▇▇ or CarrAmerica LP pursuant to this Section
from time to time, but, together with the Tranche B Loans, not more frequently
than four times monthly, during the Term in amounts such that the aggregate
principal amount of Tranche A Loans by such Bank at any one time outstanding
together with such Bank's pro rata share of Letter of Credit Usage with respect
to ▇▇▇▇ and CarrAmerica LP shall not exceed the amount of its Tranche A
Commitment. The aggregate amount of Tranche A Loans to be made hereunder
together with the Letter of Credit Usage with respect to ▇▇▇▇ and CarrAmerica
LP, shall not exceed Three Hundred Seventy-Six Million Dollars ($376,000,000)
(the "Tranche A Loan Amount"). Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make the Tranche B Loans to ▇▇▇▇ ▇▇
and ▇▇▇▇ and participate in Letters of Credit issued by the Fronting Bank on
behalf of ▇▇▇▇ ▇▇ pursuant to this Section from time to time, but, together with
the Tranche A Loans, not more frequently than four times monthly, during the
Term in amounts such that the aggregate principal amount of Tranche B Loans by
such Bank at any one time outstanding, together with such Bank's pro rata share
of Letter of Credit Usage with respect to ▇▇▇▇ ▇▇, shall not exceed the amount
of its Tranche B Commitment. The aggregate amount of Tranche B Loans to be made
hereunder, together with the Letter of Credit Usage with respect to ▇▇▇▇ ▇▇,
shall not exceed Seventy-Four Million Dollars ($74,000,000) (the "Tranche B Loan
Amount"). Each Borrowing under this subsection (a) shall be in an aggregate
principal amount of at least $2,500,000, or an integral multiple of $1,000,000
31
in excess thereof (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.2(c)) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Subject to the
limitations set forth herein, any amounts repaid may be reborrowed.
Notwithstanding anything to the contrary, the number of new Borrowings shall be
limited to four Borrowings per month and no more than ten Borrowings shall be
outstanding at any time.
SECTION 2.2. Notice of Committed Borrowing. (a) The applicable
Borrower or CarrAmerica LP, as the case may be, shall give the Lead Agent notice
(a "Notice of Committed Borrowing") not later than 10:00 a.m. (New York City
time) (x) one Domestic Business Day before each Base Rate Borrowing or (y) the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Either Borrower or CarrAmerica LP shall give the Lead
Agent, and the designated Fronting Bank, written notice in the event that it
desires to have Letters of Credit (each, a "Letter of Credit") issued hereunder
no later than 10:00 a.m., New York City time, at least four (4) Domestic
Business Days prior to the date of such issuance. Each such notice shall specify
(i) the designated Fronting Bank, (ii) the aggregate amount of the requested
Letters of Credit, (iii) the individual amount of each requested Letter of
Credit and the number of Letters of Credit to be issued, (iv) the date of such
32
issuance (which shall be a Domestic Business Day), (v) the name and address of
the beneficiary, (vi) the expiration date of the Letter of Credit (which in no
event shall be later than twelve (12) months after the issuance of such Letter
of Credit or the Maturity Date, whichever is earlier), (vii) the purpose and
circumstances for which such Letter of Credit is being issued, (viii) the terms
upon which each such Letter of Credit may be drawn down (which terms shall not
leave any discretion to Fronting Bank), and (ix) whether such Letters of Credit
shall be attributable to Tranche A Loan Amount or Tranche B Loan Amount. Each
such notice may be revoked telephonically by the applicable Borrower or
CarrAmerica LP, as the case may be, to the applicable Fronting Bank and the Lead
Agent any time prior to the date of issuance of the Letter of Credit by the
applicable Fronting Bank, provided such revocation is confirmed in writing by
such Borrower or CarrAmerica LP to the Fronting Bank and the Lead Agent within
one (1) Domestic Business Day by facsimile. No later than 10:00 a.m., New York
City time, on the date that is four (4) Domestic Business Days prior to the date
of issuance, the applicable Borrower or CarrAmerica LP shall specify a precise
description of the documents and the verbatim text of any certificate to be
presented by the beneficiary of such Letter of Credit, which if presented by
such beneficiary prior to the expiration date of the Letter of Credit would
require the Fronting Bank to make a payment under the Letter of Credit; provided
that Fronting Bank may, in its reasonable judgment, require changes in any such
documents and certificates only in conformity with changes in customary and
commercially reasonable practice or law and provided further, that no Letter of
Credit shall require payment against a conforming draft to be made thereunder on
the following Domestic Business Day that such draft is presented if such
presentation is made later than 10:00 A.M. New York City time (except that if
the beneficiary of any Letter of Credit requests at the time of the issuance of
its Letter of Credit that payment be made on the same Domestic Business Day
against a conforming draft, such beneficiary shall be entitled to such a same
day draw, provided such draft is presented to the applicable Fronting Bank no
later than 10:00 A.M. New York City time and provided further that, prior to the
issuance of such Letter of Credit, such Borrower or CarrAmerica LP shall have
requested to Fronting Bank and the Lead Agent that such beneficiary shall be
entitled to a same day draw). In determining whether to pay on such Letter of
33
Credit, the Fronting Bank shall be responsible only to determine that the
documents and certificates required to be delivered under the Letter of Credit
have been delivered and that they comply on their face with the requirements of
that Letter of Credit.
SECTION 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed
Borrowings pursuant to Section 2.1 and Section 2.2 hereof, the applicable
Borrower or CarrAmerica LP, as the case may be, may, as set forth in this
Section, request the Banks at any time or from time to time during the Term to
make offers to make Money Market Loans to such Borrower or CarrAmerica LP, as
the case may be, not to exceed $225,000,000 in the aggregate outstanding at any
one time. The Banks may, but shall have no obligation to, make such offers and
the applicable Borrower or CarrAmerica LP, as the case may be, may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the applicable Borrower
or CarrAmerica LP, as the case may be, wishes to request offers to make Money
Market Loans under this Section, it shall transmit to the Lead Agent by telex or
facsimile transmission a request for Money Market Quotes substantially in the
form of Exhibit D hereto (a "Money Market Quote Request") so as to be received
not later than 10:30 A.M. (New York City time) on (x) the fourth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrowers and the Lead Agent shall
have mutually agreed and shall have notified to the Banks not later than the
date of the Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
34
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $500,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period,
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate,
(v) whether the Money Market Loan will consist in full or in
part of the Tranche A Loan and/or the Tranche B Loan, and if consisting
in part of each, the portions consisting of Tranche A Loans and Tranche
B Loans, and
(vi) whether a Bank may designate a Designated Lender in
connection with such Money Market Loan.
The applicable Borrower or CarrAmerica LP, as the case may be, may request
offers to make Money Market Loans for more than one Interest Period in a single
Money Market Quote Request. No Money Market Quote Request shall be given within
five Euro-Dollar Business Days (or such other number of days as the Borrowers
and the Lead Agent may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt
of a Money Market Quote Request, but no later than 1:00 p.m. (New York City
time) on (i) the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, or (ii) the Domestic Business next preceding the date of the proposed
Borrowing, the Lead Agent shall send to the Banks by telex or facsimile
transmission an Invitation for Money Market Quotes substantially in the form of
Exhibit E hereto (an "Invitation for Money Market Quotes"), which shall
constitute an invitation by the applicable Borrower or CarrAmerica LP, as the
case may be, to each Bank to submit Money Market Quotes offering to make the
Money Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Lead Agent by telex or facsimile transmission at its offices
35
specified in or pursuant to Section 9.1 not later than (x) 10:00 A.M. (New York
City time) on the third Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Borrowers and the Lead Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided that
Money Market Quotes submitted by the Lead Agent (or any affiliate of the Lead
Agent) in its capacity of a Bank may be submitted, and may only be submitted, if
the Lead Agent or such affiliate notifies the applicable Borrower or CarrAmerica
LP, as the case may be, of the terms of the offer or offers contained therein
not later than thirty (30) minutes prior to the applicable deadline for the
other Banks. Subject to Articles III and VI, any Money Market Quote so made
shall be irrevocable except with the written consent of the Lead Agent given on
the instructions of the applicable Borrower or CarrAmerica LP, as the case may
be. If, and only if, the applicable Borrower or CarrAmerica LP, as the case may
be, elected in the applicable Money Market Quote Request to permit the Banks to
designate Designated Lenders to fund such Money Market Loans, such Money Market
Loans may be funded by such Bank's Designated Lender (if any) as provided in
Section 9.6(d), however such Bank shall not be required to specify in its Money
Market Quote whether such Money Market Loans will be funded by such Designated
Lender.
(ii) Each Money Market Quote shall be in substantially the
form of Exhibit F hereto and shall in any case specify:
(1) the proposed date of Borrowing,
(2) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x) must
be $5,000,000 or a larger multiple of $500,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested
and (z) may be subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
36
(3) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from the applicable London Interbank Offered Rate,
(4) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(5) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(1) is not substantially in conformity with Exhibit F
hereto or does not specify all of the information required by
subsection (d)(ii) above;
(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(4) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Lead Agent shall promptly notify
the applicable Borrower or CarrAmerica LP, as the case may be, (x) with respect
to each Money Market Quote submitted in accordance with subsection (d), of the
terms of such Money Market Quote and the identity of the Bank submitting such
Money Market Quote and (y) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request. Any such subsequent Money
Market Quote shall be disregarded by the Lead Agent unless such subsequent Money
Market
37
Quote is submitted solely to correct a manifest error in such former Money
Market Quote. The Lead Agent's notice to the applicable Borrower or CarrAmerica
LP, as the case may be, shall specify (A) the aggregate principal amount of
Money Market Loans for which Money Market Quotes have been received for each
Interest Period specified in the related Money Market Quote Request, (B) the
respective principal amounts and Money Market Margins or Money Market Absolute
Rates, as the case may be, so offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for which offers in any single
Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 12:00
noon (New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrowers and the Lead Agent shall have mutually
agreed and shall have notified the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective), the applicable Borrower, or CarrAmerica
LP, as the case may be, shall notify the Lead Agent of its acceptance or
non-acceptance of the Money Market Quotes specified in the Lead Agent's notice
to the applicable Borrower or CarrAmerica LP, as the case may be, pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted and shall specify whether such offer is
to be allocated to Tranche A or Tranche B. The applicable Borrower or
CarrAmerica LP, as the case may be, may accept any Money Market Quote in whole
or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing
must be $10,000,000 or a larger multiple of $500,000;
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(iii) acceptance of offers may only be made on the basis
of ascending Money Market Margins or Money Market Absolute Rates,
as the case may be; and
(iv) the applicable Borrower or CarrAmerica LP, as the
case may be, may not accept any Money Market Quote that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
For the purposes of Section 2.1 hereof, all Money Market Loans
made on the same date of Borrowing for the same Interest Period shall constitute
a single Borrowing.
(g) Allocation by Lead Agent. If Money Market Quotes are made
by two or more Banks with the same Money Market Margins or Money Market Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which such Money Market Quotes are accepted for the related
Interest Period, the principal amount of Money Market Loans in respect of which
such Money Market Quotes are accepted shall be allocated by the Lead Agent among
such Banks as nearly as possible (in multiples of $500,000, as the Lead Agent
may deem appropriate) in proportion to the aggregate principal amounts of such
Money Market Quotes. Determinations by the Lead Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
(h) Notification by Lead Agent. Upon receipt of a Notice of
Money Market Borrowing in accordance with Section 2.3(f) hereof, the Lead Agent
shall, on the date such Notice of Money Market Borrowing is received by the Lead
Agent, notify each Bank of the principal amount of the Money Market Borrowing
accepted by the applicable Borrower or CarrAmerica LP, as the case may be, and
of such Bank's share (if any) of such Money Market Borrowing and such Notice of
Money Market Borrowing shall not thereafter be revocable by the applicable
Borrower or CarrAmerica LP, as the case may be. Provided that the applicable
Borrower or CarrAmerica LP, as the case may be, elected in the applicable Money
Market Quote Request to permit the Banks to designate Designated Lenders to fund
such Money Market Loans, a Bank who is notified that it has been selected to
make a Money Market Loan may designate its Designated Lender (if any) to fund
39
such Money Market Loan on its behalf, as described in Section 9.6(d). Any
Designated Lender which funds a Money Market Loan shall on and after the time of
such funding become the obligee under such Money Market Loan and be entitled to
receive payment thereof when due. No Bank shall be relieved of its obligation to
fund a Money Market Loan, and no Designated Lender shall assume such obligation,
prior to the time the applicable Money Market Loan is funded.
SECTION 2.4. Notice to Banks; Funding of Loans
(a) Upon receipt of a Notice of Committed Borrowing, the Lead
Agent shall notify each Bank on the same day as it receives such Notice of
Committed Borrowing of the contents thereof and of such Bank's share of such
Borrowing and such Notice of Committed Borrowing shall not thereafter be
revocable by the applicable Borrower or CarrAmerica LP.
(b) Not later than 2:00 P.M. (New York City time) on the date
of each Committed Borrowing as indicated in the Notice of Committed Borrowing,
each Bank shall (except as provided in subsection (c) of this Section) make
available its share of such Borrowing, in Federal or other funds immediately
available in New York City, to the Lead Agent at its address referred to in
Section 9.1. The Lead Agent will make the funds so received from the Banks
available to the applicable Borrower or CarrAmerica LP, as applicable, at the
Lead Agent's aforesaid address. If a Borrower or CarrAmerica LP has requested
the issuance of a Letter of Credit, no later than 12:00 Noon (New York City
time) on the date of such issuance as indicated in the Notice of Committed
Borrowing, the Fronting Bank shall issue such Letter of Credit in the amount so
requested and deliver the same to the applicable Borrower or CarrAmerica LP with
a copy thereof to the Lead Agent. Immediately upon the issuance of each Letter
of Credit by the Fronting Bank, such Fronting Bank shall be deemed to have sold
and transferred to each other Bank, and each such other Bank shall be deemed to,
and hereby agrees to, have irrevocably and unconditionally purchased and
received from Fronting Bank, without recourse or warranty, an undivided interest
and a participation in such Letter of Credit, any drawing thereunder, and the
obligations of the applicable Borrower or CarrAmerica LP hereunder with respect
thereto, and any security therefor or guaranty pertaining thereto, in an amount
equal to such Bank's ratable share thereof (based upon the ratio its Commitment
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bears to the aggregate of all Commitments). Upon any change in any of the
Commitments in accordance herewith, there shall be an automatic adjustment to
such participations to reflect such changed shares. The Fronting Bank shall have
the primary obligation to fund any and all draws made with respect to such
Letter of Credit notwithstanding any failure of a participating Bank to fund its
ratable share of any such draw. The Lead Agent will instruct the Fronting Bank
to make such Letter of Credit available to such Borrower and the Fronting Bank
shall make such Letter of Credit available to the applicable Borrower or
CarrAmerica LP at the applicable Borrower's or CarrAmerica's LP aforesaid
address on the date of the Borrowing.
(c) Unless the Lead Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Lead Agent such Bank's share of such Borrowing, the Lead Agent may assume
that such Bank has made such share available to the Lead Agent on the date of
such Borrowing in accordance with subsection (b) of this Section 2.4 and the
Lead Agent may, in reliance upon such assumption, make available to the
applicable Borrower or CarrAmerica LP, as applicable, on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Lead Agent, such Bank and the applicable Borrower or
CarrAmerica LP severally agree to repay to the Lead Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the applicable Borrower or CarrAmerica LP
until the date such amount is repaid to the Lead Agent, at (i) in the case of
either Borrower or CarrAmerica LP, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.7 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Lead Agent such corresponding amount, such amount so repaid
shall constitute such Bank's Loan included in such Borrowing for purposes of
this Agreement.
SECTION 2.5. Notes.
(a) The Tranche A Loans shall be evidenced by the Tranche A
Notes, each of which shall be payable to the order of each Bank for the account
of its Applicable Lending Office in an amount equal to each such Bank's Tranche
A Commitment.
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(b) The Tranche B Loans shall be evidenced by the Tranche B
Notes, each of which shall be payable to the order of each Bank for the account
of its Applicable Lending Office in an amount equal to each such Bank's Tranche
B Commitment.
(c) Each Bank may, by notice to the Borrowers and CarrAmerica
LP and the Lead Agent, request that its Loans of a particular type be evidenced
by a separate Note in an amount equal to the aggregate unpaid principal amount
of such Loans. Each such Note shall be in substantially the form of Exhibit A-1
or Exhibit A-2 hereto, as applicable, with appropriate modifications to reflect
the fact that it evidences solely Loans of the relevant type. Each reference in
this Agreement to the "Note" of such Bank shall be deemed to refer to and
include any or all of such Notes, as the context may require.
(d) Upon receipt of each Bank's Note pursuant to Section
3.1(a) or (b), the Lead Agent shall forward such Note to such Bank. Each Bank
shall record the date, amount, type and maturity of each Loan made by it and the
date and amount of each payment of principal made by either Borrower or
CarrAmerica LP with respect thereto, and may, if such Bank so elects in
connection with any transfer or enforcement of its Note, endorse on the schedule
forming a part thereof appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrowers hereunder or under the Notes. Each Bank is
hereby irrevocably authorized by the Borrowers and CarrAmerica LP so to endorse
its Note and to attach to and make a part of its Note a continuation of any such
schedule as and when required.
(e) There shall be no more than ten (10) Euro-Dollar
Borrowings outstanding at any one time pursuant to this Agreement.
SECTION 2.6. Maturity of Loans. The Loans shall mature, and
the principal amount thereof shall be due and payable, on the Maturity Date.
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SECTION 2.7. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the sum of the Applicable Margin for
Base Rate Loans for such day plus the Base Rate for such day. Such interest
shall be payable for each Interest Period on the last day thereof.
(b) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest Period
applicable thereto, at a rate per annum equal to the sum of the Applicable
Margin for Euro-Dollar Loans for such day plus the Adjusted London Interbank
Offered Rate applicable to such Interest Period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than three months, at intervals of three months after the first day
thereof.
"Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
"London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to the Reference Bank in the London interbank market at approximately
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11:00 a.m. (London time) two Euro-Dollar Business Days before the first day of
such Interest Period in an amount approximately equal to the principal amount of
the Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
(c) Subject to Section 8.1, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.7(b) as if the related Money Market LIBOR Loan were a Euro-Dollar
Loan) plus (or minus) the Money Market Margin quoted by the Bank making such
Loan in accordance with Section 2.3. Each Money Market Absolute Rate Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the Money Market
Absolute Rate quoted by the Bank making such Loan in accordance with Section
2.3. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than ninety days, at intervals of
ninety days after the first day thereof.
(d) In the event that, and for so long as, any Event of
Default shall have occurred and be continuing, the outstanding principal amount
of the Loans, and, to the extent permitted by law, overdue interest in respect
of all Loans, shall bear interest at the annual rate of the sum of the Prime
Rate and four percent (4%).
(e) The Lead Agent shall determine each interest rate
applicable to the Loans (other than Money Market Loans) hereunder. The Lead
Agent shall give prompt notice to the applicable Borrower or CarrAmerica LP and
the Banks of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(f) The Reference Bank agrees to use its best efforts to
furnish quotations to the Lead Agent as contemplated by this Section. If the
Reference Bank does not furnish a timely quotation, the provisions of Section
8.1 shall apply.
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SECTION 2.8. Fees.
(a) Facility Fee. Effective as of the date hereof, during the
Term, the Borrowers and/or CarrAmerica LP shall pay to the Lead Agent for the
account of the Banks ratably in proportion to their respective Commitments a
facility fee (the "Facility Fee") equal to .20% per annum on the aggregate
Commitments. The Facility Fee shall be payable in arrears on each January 1,
April 1, July 1 and October 1 during the Term.
(b) Letter of Credit Fee. During the Term, the Borrowers
and/or CarrAmerica LP shall pay to the Lead Agent, for the account of the Banks
ratably in proportion to their respective interests in undrawn issued Letters of
Credit, a fee (a "Letter of Credit Fee") in an amount, provided that no Event of
Default shall have occurred and be continuing, equal to a rate per annum equal
to the Applicable Margin for Euro-Dollar Loans on the daily average of such
issued and undrawn Letters of Credit, which fee shall be payable, in arrears, on
each January 1, April 1, July 1 and October 1 during the term. From the
occurrence, and during the continuance, of an Event of Default, such fee shall
be increased to be equal to four percent (4%) per annum on the daily average of
such issued and undrawn Letters of Credit.
(c) Fronting Bank Fee. The Borrowers and/or CarrAmerica LP
shall pay any Fronting Bank, for its own account, a fee (a "Fronting Bank Fee")
at a rate per annum equal to .15% of the issued and undrawn amount of such
Letter of Credit, which fee shall be in addition to and not in lieu of, the
Letter of Credit Fee. The Fronting Bank Fee shall be payable in arrears on each
January 1, April 1, July 1 and October 1 during the Term.
(d) Fees Non-Refundable. All fees set forth in this Section
2.8 shall be deemed to have been earned on the date payment is due in accordance
with the provisions hereof and shall be non-refundable. The obligation of the
Borrowers and CarrAmerica LP to pay such fees in accordance with the provisions
hereof shall be binding upon the Borrowers and CarrAmerica LP and shall inure to
the benefit of the Lead Agent and the Banks regardless of whether any Loans are
actually made.
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SECTION 2.9. Mandatory Termination. The term (the "Term") of
the Commitments shall terminate and expire on September 14, 2000 (the "Maturity
Date").
SECTION 2.10. Mandatory Prepayment
(a) If as of the last day of any calendar quarter the
Borrowers LTV Ratio exceeds the Permitted LTV Ratio, but the Borrowers LTV Ratio
is not greater than 52.5%, and provided that no Event of Default has occurred
and is continuing, either (i) ▇▇▇▇ or ▇▇▇▇ ▇▇ shall add additional Real Property
Assets to the Unencumbered Asset Pool Properties within 90 days of the date the
Borrowers LTV Ratio exceeded the Permitted LTV Ratio, in accordance with the
provisions of Section 3.3, or (ii) the Borrowers and/or CarrAmerica LP shall pay
to the Lead Agent, for the account of the Banks, within 90 days of the date the
Borrowers LTV Ratio exceeded the Permitted LTV Ratio, an amount such that the
Loans outstanding subsequent to such payment do not cause the Borrowers LTV
Ratio to exceed the Permitted LTV Ratio. In the event that the Borrowers LTV
Ratio exceeds the Permitted LTV Ratio and is greater than or equal to 52.5%,
then the Borrowers and/or CarrAmerica LP shall, within twenty-five (25) Domestic
Business Days from the last day of any calendar quarter or the date of any New
Acquisition when the Permitted LTV Ratio is exceeded, pay to the Lead Agent, for
the account of the Banks, an amount such that the Loans outstanding subsequent
to such payment do not cause the Borrowers LTV Ratio to exceed the Permitted LTV
Ratio. Failure by the Borrowers to comply with the Borrowers LTV Ratio within 90
days or 25 Domestic Business Days, as the case may be, of the date of such
non-compliance shall be an Event of Default.
(b) In the event that an Unencumbered Asset Pool Property is
sold or released from the restrictions of Section 5.14 hereof, in accordance
with this Agreement, the applicable Borrower shall simultaneously with such sale
or release, prepay to the Lead Agent, for the account of the Banks, an amount
equal to the amount required such that the Tranche A Loans or Tranche B Loans,
as applicable, remain in compliance with the Permitted LTV Ratio after such sale
or release. Notwithstanding the foregoing, a simultaneous like-kind exchange
under Section 1031 of the Internal Revenue Code will not be subject to the
46
provisions of this Section 2.10(b) provided that the exchanged property has
qualified as a New Acquisition and any "boot" associated therewith shall be
applied to prepayment of the Tranche A Loans or Tranche B Loans, as applicable.
Sale of a property in violation of this Section 2.10 shall constitute an Event
of Default.
(c) In the event that the Unencumbered Asset Pool Properties
Minimum Debt Service Coverage is not maintained as of the last day of a calendar
quarter, either (i) the Borrowers will add a New Acquisition or a Real Property
Asset to the Unencumbered Asset Pool Properties in accordance with this
Agreement which, on a pro forma basis (i.e. the Unencumbered Asset Pool
Properties Minimum Debt Service Coverage shall be recalculated to include such
New Acquisition or Real Property Asset as though the same had been an
Unencumbered Asset Pool Property for the entire applicable period, with
appropriate pro forma adjustments to Unencumbered Asset Pool Net Operating Cash
Flow) would result in compliance with the Unencumbered Asset Pool Properties
Minimum Debt Service Coverage or (ii) the Borrowers and/or CarrAmerica LP shall
prepay to the Lead Agent, for the account of the Banks, an amount necessary to
cause the Unencumbered Asset Pool Properties Minimum Debt Service Coverage to be
in compliance. Failure by the Borrowers and/or CarrAmerica LP to comply with the
Unencumbered Asset Pool Properties Minimum Debt Service Coverage within 90 days
of the date of such non-compliance shall be an Event of Default.
(d) If as of the last day of any calendar quarter the ▇▇▇▇ LTV
Ratio exceeds 50%, but the ▇▇▇▇ LTV Ratio is not greater than 52.5%, and
provided that no Event of Default has occurred and is continuing, either (i)
▇▇▇▇ shall add additional Real Property Assets to the ▇▇▇▇ Unencumbered Asset
Pool Properties within 90 days of the date the ▇▇▇▇ LTV Ratio exceeded 50%, in
accordance with the provisions of Section 3.3, or (ii) ▇▇▇▇ shall pay to the
Lead Agent, for the account of the Banks, within 90 days of the date the ▇▇▇▇
LTV Ratio exceeded 50%, an amount such that the Tranche A Loans outstanding
subsequent to such payment shall not cause the ▇▇▇▇ LTV Ratio to be greater than
50%. In the event that the ▇▇▇▇ LTV Ratio exceeds 50% and is greater than or
equal to 52.5%, then ▇▇▇▇ shall, within twenty-five (25) Domestic Business Days
from the last day of any calendar quarter or the date of any New Acquisition
when the ▇▇▇▇ LTV Ratio is greater than 50%, pay to the Lead Agent, for the
account of the Banks, an amount such that the Tranche A Loans outstanding
subsequent to such payment shall not cause the ▇▇▇▇ LTV Ratio to be greater than
47
50%. Failure by ▇▇▇▇ to comply with the ▇▇▇▇ LTV Ratio within 90 days or 25
Domestic Business Days, as the case may be, of the date of such non-compliance
shall be an Event of Default.
(e) If as of the last day of any calendar quarter the ▇▇▇▇ ▇▇
LTV Ratio exceeds 50%, but the ▇▇▇▇ ▇▇ LTV Ratio is not greater than 52.5%, and
provided that no Event of Default has occurred and is continuing, either (i)
▇▇▇▇ ▇▇ shall add additional Real Property Assets to the ▇▇▇▇ ▇▇ Unencumbered
Asset Pool Properties within 90 days of the date the ▇▇▇▇ ▇▇ LTV Ratio exceeded
50%, in accordance with the provisions of Section 3.3, or (ii) ▇▇▇▇ ▇▇ shall pay
to the Lead Agent, for the account of the Banks, within 90 days of the date the
▇▇▇▇ ▇▇ LTV Ratio exceeded 50%, an amount such that the Tranche B Loans
outstanding subsequent to such payment shall not cause the ▇▇▇▇ ▇▇ LTV Ratio to
be greater than 50%. In the event that the ▇▇▇▇ ▇▇ LTV Ratio exceeds 50% and is
greater than or equal to 52.5%, then ▇▇▇▇ ▇▇ shall, within twenty-five (25)
Domestic Business Days from the last day of any calendar quarter or the date of
any New Acquisition when the ▇▇▇▇ ▇▇ LTV Ratio is greater than 50%, pay to the
Lead Agent, for the account of the Banks, an amount such that the Tranche B
Loans outstanding subsequent to such payment shall not cause the ▇▇▇▇ ▇▇ LTV
Ratio to be greater than 50%. Failure by ▇▇▇▇ ▇▇ to comply with the ▇▇▇▇ ▇▇ LTV
Ratio within 90 days or 25 Domestic Business Days, as the case may be, of the
date of such non-compliance shall be an Event of Default.
SECTOPM 2.11. Optional Prepayments
(a) The Borrowers or CarrAmerica LP may, upon at least one
Domestic Business Day's notice to the Lead Agent, prepay to the Lead Agent, for
the account of the Banks, any Base Rate Borrowing in whole at any time, or from
time to time in part in amounts aggregating One Million Dollars ($1,000,000), or
an integral multiple of One Million Dollars ($1,000,000) in excess thereof or,
if less, the outstanding principal balance, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Loans of the
several Banks included in such Borrowing. Any notice of prepayment delivered
pursuant to this Section 2.11(a) shall set forth the amount of such prepayment
which is applicable to any Loan made for working capital purposes after such
prepayment is made.
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(b) Except as provided in Section 8.2, a Borrower or
CarrAmerica LP may not prepay all or any portion of the principal amount of any
Euro-Dollar Loan prior to the maturity thereof unless the applicable Borrower or
CarrAmerica LP shall also pay any applicable expenses pursuant to Section 2.13.
Any such prepayment shall be upon at least three (3) Euro-Dollar Business Days'
notice to the Lead Agent. Any notice of prepayment delivered pursuant to this
Section 2.11(b) shall set forth the amount of such prepayment which is
applicable to any Loan made for working capital purposes after such prepayment
is made. Each such optional prepayment shall be in the amounts set forth in
Section 2.11(a) above and shall be applied to prepay ratably the Loans of the
Banks included.
(c) The Borrower may not prepay any Money Market Loan pursuant
to this Section 2.11 except with the prior consent of the applicable Bank or
Designated Lender, as the case may be.
(d) A Borrower or CarrAmerica LP may, upon at least one (1)
Domestic Business Day's notice to the Lead Agent (by 11:00 a.m New York time on
such Domestic Business Day), reimburse the Lead Agent for the benefit of the
Fronting Bank for the amount of any drawing under a Letter of Credit in whole or
in part in any amount.
(e) A Borrower or CarrAmerica LP may at any time return any
undrawn Letters of Credit to the Fronting Bank in whole, but not in part, and
the Fronting Bank shall give the Lead Agent and each of the Banks notice of such
return.
(f) Either Borrower may at any time and from time to time
cancel all or any part of the Tranche A Commitments or Tranche B Commitments, as
applicable, in amounts aggregating One Million Dollars ($1,000,000), or an
integral multiple of One Million Dollars ($1,000,000) in excess thereof, by the
delivery to the Lead Agent and the Banks of a notice of cancellation upon at
least three (3) Domestic Business Days' notice to Lead Agent and the Banks,
whereupon, in either event, all or such portion of the Tranche A Commitments or
Tranche B Commitments, as applicable, shall terminate as to the Banks, pro rata
on the date set forth in such notice of cancellation, and, if there are any
Loans then outstanding in an aggregate amount which exceeds the aggregate
Tranche A Commitments or Tranche B Commitments, as applicable (after giving
49
effect to any such reduction), the applicable Borrower shall prepay to the Lead
Agent, for the account of the Banks, as applicable, all or such portion of Loans
outstanding on such date in accordance with the requirements of Sections 2.11(a)
and (b). In no event shall either Borrower be permitted to cancel Commitments
for which a Letter of Credit has been issued and is outstanding unless such
Borrower returns (or causes to be returned) such Letter of Credit to the
Fronting Bank. A Borrower shall be permitted to designate in its notice of
cancellation which Loans, if any, are to be prepaid.
(g) Upon receipt of a notice of prepayment or cancellation or
a return of a Letter of Credit pursuant to this Section, the Lead Agent shall
promptly, and in any event within one (1) Domestic Business Day, notify each
Bank of the contents thereof and of such Bank's ratable share (if any) of such
prepayment or cancellation and such notice shall not thereafter be revocable by
the Borrowers or CarrAmerica LP.
(h) Any amounts so prepaid pursuant to this Section 2.11 may
be reborrowed subject to the other terms of this Agreement. In the event either
Borrower elects to cancel all or any portion of the Commitments pursuant to
Section 2.11(e) hereof, such amounts may not be reborrowed.
SECTION 2.12. General Provisions as to Payments
(a) The Borrowers and CarrAmerica LP shall make each payment
of principal of, and interest on, the Loans and of fees hereunder, not later
than 12:00 Noon (New York City time) on the date when due, in Federal or other
funds immediately available in New York City, to the Lead Agent at its address
referred to in Section 9.1. The Lead Agent will distribute to each Bank its
ratable share of each such payment received by the Lead Agent for the account of
the Banks on the same day as received by the Lead Agent if received by the Lead
Agent by 3:00 p.m. (New York City time), or, if received by the Lead Agent after
3:00 p.m. (New York City time), on the immediately following Domestic Business
Day. Whenever any payment of principal of, or interest on, the Base Rate Loans
or of fees shall be due on a day which is not a Domestic Business Day, the date
50
for payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or interest on, the Money
Market Loans shall be due on a day which is not a Euro-Dollar Business Day, the
date for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Lead Agent shall have received notice from a
Borrower or CarrAmerica LP prior to the date on which any payment is due to the
Banks hereunder that such Borrower or CarrAmerica LP will not make such payment
in full, the Lead Agent may assume that such Borrower or CarrAmerica LP, as
applicable has made such payment in full to the Lead Agent on such date and the
Lead Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that such Borrower or CarrAmerica LP shall not have so made
such payment, each Bank shall repay to the Lead Agent forthwith on demand such
amount distributed to such Bank together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to the Lead Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If a Borrower or CarrAmerica LP
makes any payment of principal with respect to any Euro-Dollar Loan (pursuant to
Article II, VI or VIII or otherwise) on any day other than the last day of the
Interest Period applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.7(b), or if a Borrower fails to borrow any
Euro-Dollar Loans, after notice has been given to any Bank in accordance with
Section 2.4(a), such Borrower or CarrAmerica LP shall reimburse each Bank within
15 days after demand for any resulting loss or expense incurred by it (or by an
existing Participant in the related Loan), including (without limitation) any
51
loss incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment or
failure to borrow, provided that such Bank shall have delivered to such Borrower
or CarrAmerica LP a certificate as to the amount of such loss or expense and the
calculation thereof, which certificate shall be conclusive in the absence of
manifest error.
SECTION 2.14. Computation of Interest and Fees. Interest based
on the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Method of Electing Interest Rates.
(a) The Loans included in each Borrowing shall bear interest
initially at the type of rate specified by such Borrower or CarrAmerica LP in
the applicable Notice of Borrowing. Thereafter, such Borrower or CarrAmerica LP,
as applicable, may from time to time elect to change or continue the type of
interest rate borne by each Group of Loans (subject in each case to the
provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, a Borrower or
CarrAmerica LP, as applicable, may elect to convert such Loans to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, a Borrower or
CarrAmerica LP, as applicable, may elect to convert such Loans to
Base Rate Loans or elect to continue such Loans as Euro-Dollar
Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to
such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Lead Agent at least three (3) Euro-Dollar Business Days
before the conversion or continuation selected in such notice is to be effective
(unless the relevant Loans are to be continued as Base Rate Loans, in which case
such notice shall be delivered to the Lead Agent no later than 12:00 Noon (New
York City time) at least one (1) Domestic Business Day before such continuation
52
is to be effective). A Notice of Interest Rate Election may, if it so specifies,
apply to only a portion of the aggregate principal amount of the relevant Group
of Loans; provided that (i) such portion is allocated ratably among the Loans
comprising such Group, (ii) the portion to which such notice applies, and the
remaining portion to which it does not apply, are each $1,000,000 or any larger
multiple of $1,000,000, (iii) subject to Section 2.1, there shall be no more
than ten (10) Borrowings comprised of Euro-Dollar Loans outstanding at any time
under this Agreement, (iv) no Loan may be continued as, or converted into, a
Euro-Dollar Loan when any Event of Default has occurred and is continuing, and
(v) no Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply
with the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be
converted, the new type of Loans and, if such new Loans are
Euro-Dollar Loans, the duration of the initial Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from a
Borrower or CarrAmerica LP pursuant to subsection (a) above, the Lead Agent
shall notify each Bank on the same day as it receives such Notice of Interest
Rate Election of the contents thereof and such notice shall not thereafter be
revocable by such Borrower or CarrAmerica LP. If such Borrower or CarrAmerica LP
53
fails to deliver a timely Notice of Interest Rate Election to the Lead Agent for
any Group of Euro-Dollar Loans, such Loans shall be converted into Base Rate
Loans on the last day of the then current Interest Period applicable thereto.
SECTION 2.16. Letters of Credit. (a) Subject to the terms
contained in this Agreement and the other Loan Documents, upon the receipt of a
notice in accordance with Section 2.2(b) requesting the issuance of a Letter of
Credit, the Fronting Bank shall issue a Letter of Credit or Letters of Credit in
such form as is reasonably acceptable to the applicable Borrower or CarrAmerica
LP, as applicable, in an amount or amounts equal to the amount or amounts
requested by the applicable Borrower or CarrAmerica LP.
(b) Each Letter of Credit shall be issued in the minimum
amount of One Million Dollars ($1,000,000).
(c) The Letter of Credit Usage shall be no more than
$30,000,000 at any one time.
(d) There shall be no more than five (5) Letters of Credit
outstanding at any one time.
(e) In the event of any request for a drawing under any Letter
of Credit by the beneficiary thereunder, the Fronting Bank shall notify the
applicable Borrower and the Lead Agent (and the Lead Agent shall endeavor to
notify each Bank thereof) on or before the date on which the Fronting Bank
intends to honor such drawing, and, except as provided in this subsection (e),
the applicable Borrower shall reimburse the Fronting Bank, in immediately
available funds, on the same day on which such drawing is honored in an amount
equal to the amount of such drawing. Notwithstanding anything contained herein
to the contrary, however, unless such Borrower or CarrAmerica LP shall have
notified the Lead Agent, and the Fronting Bank prior to 11:00 a.m. (New York
time) on the Domestic Business Day immediately prior to the date of such drawing
that such Borrower intends to reimburse the Fronting Bank for the amount of such
drawing with funds other than the proceeds of the Loans, the applicable Borrower
or CarrAmerica LP shall be deemed to have timely given a Notice of Borrowing
54
pursuant to Section 2.2 to the Lead Agent, requesting a Borrowing of Base Rate
Loans on the date on which such drawing is honored and in an amount equal to the
amount of such drawing. Each Bank (other than the Fronting Bank) shall, in
accordance with Section 2.4(b), make available its share of such Borrowing to
the Lead Agent, the proceeds of which shall be applied directly by the Lead
Agent to reimburse the Fronting Bank for the amount of such draw. In the event
that any such Bank fails to make available to the Fronting Bank the amount of
such Bank's participation on the date of a drawing, the Fronting Bank shall be
entitled to recover such amount on demand from such Bank together with interest
at the Federal Funds Rate commencing on the date such drawing is honored.
(f) If, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof shall either (a)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits
in or for the account of, or participations in any letter of credit, upon any
Bank (including the Fronting Bank) or (b) impose on any Bank any other condition
regarding this Agreement or such Bank (including the Fronting Bank) as it
pertains to the Letters of Credit or any participation therein and the result of
any event referred to in the preceding clause (a) or (b) shall be to increase
the cost to the Fronting Bank or any Bank of issuing or maintaining any Letter
of Credit or participating therein then the applicable Borrower or CarrAmerica
LP shall pay to the Fronting Bank or such Bank, within 15 days after written
demand by such Bank (with a copy to the Lead Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, such additional amounts as shall be required to
compensate the Fronting Bank or such Bank for such increased costs or reduction
in amounts received or receivable hereunder together with interest thereon at
the Base Rate. The amount specified in the written demand shall, absent manifest
error, be final and conclusive and binding upon the Borrowers and CarrAmerica
LP.
(g) The Borrowers and CarrAmerica LP hereby agree to protect,
indemnify, pay and save the Fronting Bank harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees and disbursements) which the Fronting Bank
may incur or be subject to as a result of (i) the issuance of the Letters of
Credit, other than as a result of the gross negligence or wilful misconduct of
the Fronting Bank or (ii) the failure of the Fronting Bank to honor a drawing
under any Letter of Credit as a result of any act or omission, whether rightful
55
or wrongful, of any present or future de jure or de facto government or
governmental authority (collectively, "Governmental Acts"), other than as a
result of the gross negligence or wilful misconduct of the Fronting Bank. As
between the Borrowers, CarrAmerica LP and the Fronting Bank, the Borrowers and
CarrAmerica LP assume all risks of the acts and omissions of, or misuses of, the
Letters of Credit issued by the Fronting Bank, by the beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing, the
Fronting Bank shall not be responsible (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of such Letters of Credit, even
if it should in fact prove to be in any and all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or insufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) for failure of the beneficiary of any such Letter of Credit to
comply fully with conditions required in order to draw upon such Letter of
Credit; (iv) for errors, omissions, interruptions or delays in transmission or
delivery of any message, by mail, cable, telegraph, telex, facsimile
transmission, or otherwise; (v) for errors in interpretation of any technical
terms; (vi) for any loss or delay in the transmission or otherwise of any
documents required in order to make a drawing under any such Letter of Credit or
of the proceeds thereof; (vii) for the misapplication by the beneficiary of any
such Letter of Credit of the proceeds of such Letter of Credit; and (viii) for
any consequence arising from causes beyond the control of the Fronting Bank,
including any Government Acts, in each case other than as a result of the gross
negligence or willful misconduct of the Fronting Bank. None of the above shall
affect, impair or prevent the vesting of the Fronting Bank's rights and powers
hereunder. In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Fronting
Bank under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith, shall not put the
Fronting Bank under any resulting liability to the Borrowers or CarrAmerica LP.
56
(h) If the Fronting Bank or the Lead Agent is required at any
time, pursuant to any bankruptcy, insolvency, liquidation or reorganization law
or otherwise, to return to the Borrowers or CarrAmerica LP any reimbursement by
the Borrowers or CarrAmerica LP of any drawing under any Letter of Credit, each
Bank shall pay to the Fronting Bank or the Lead Agent, as the case may be, its
share of such payment, but without interest thereon unless the Fronting Bank or
the Lead Agent is required to pay interest on such amounts to the person
recovering such payment, in which case with interest thereon, computed at the
same rate, and on the same basis, as the interest that the Fronting Bank or the
Lead Agent is required to pay.
SECTION 2.17. Letter of Credit Usage Absolute. The obligations
of the Borrowers and CarrAmerica LP under this Agreement in respect of any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement (as the same may be
amended from time to time) and any Letter of Credit Documents (as hereinafter
defined) under all circumstances, including, without limitation, to the extent
permitted by law, the following circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit or any other agreement or instrument relating thereto (collectively, the
"Letter of Credit Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of either Borrower or
CarrAmerica LP in respect of the Letters of Credit or any other amendment or
waiver of or any consent by either Borrower or CarrAmerica LP to departure from
all or any of the Letter of Credit Documents or any Loan Document, provided that
the Fronting Bank shall not consent to any such change or amendment unless
previously consented to in writing by either Borrower or CarrAmerica LP, as
applicable;
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the obligations of either Borrower or CarrAmerica LP in
respect of the Letters of Credit;
57
(d) the existence of any claim, set-off, defense or other right
that either Borrower or CarrAmerica LP may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), the Lead Agent, the
Fronting Bank or any Bank (other than a defense based on the gross negligence or
wilful misconduct of the Lead Agent, the Fronting Bank or such Bank) or any
other Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letters of Credit Documents or any unrelated
transaction;
(e) any draft or any other document presented under or in
connection with any Letter of Credit or other Loan Document proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; provided that payment by the
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank;
(f) payment by the Fronting Bank against presentation of a draft
or certificate that does not comply with the terms of the Letter of Credit;
provided that such payment shall not have constituted gross negligence or wilful
misconduct of the Fronting Bank; and
(g) any other circumstance or happening whatsoever other than the
payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, the Borrowers or CarrAmerica LP; provided that
such other circumstance or happening shall not have been the result of gross
negligence or wilful misconduct of the Fronting Bank.
ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the
date (the "Closing Date") when each of the following conditions is satisfied (or
58
waived by the Lead Agent), each document to be dated the Closing Date unless
otherwise indicated:
(a) ▇▇▇▇ and CarrAmerica LP shall have executed and
delivered to the Lead Agent a Tranche A Note for the account of
each Bank dated on or before the Closing Date complying with the
provisions of Section 2.5;
(b) ▇▇▇▇ and ▇▇▇▇ ▇▇ shall have executed and delivered to
the Lead Agent a Tranche B Note for the account of each Bank
dated on or before the Closing Date complying with the provisions
of Section 2.5;
(c) the Borrowers and CarrAmerica LP shall have executed and
delivered to the Lead Agent a duly executed original of this
Agreement;
(d) Lead Agent shall have received an opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., with respect to certain matters of New York and
Maryland law, acceptable to the Lead Agent, the Banks and their
counsel;
(e) the Lead Agent shall have received all documents the
Lead Agent may reasonably request relating to the existence of
the Borrowers and CarrAmerica LP, the authority for and the
validity of this Agreement and the other Loan Documents, and any
other matters relevant hereto, all in form and substance
reasonably satisfactory to the Lead Agent. Such documentation
shall include, without limitation, the articles of incorporation
and by-laws of ▇▇▇▇ and the partnership agreement and limited
partnership certificate of ▇▇▇▇ ▇▇ and CarrAmerica LP, as
amended, modified or supplemented to the Closing Date, each
certified to be true, correct and complete by a senior officer of
▇▇▇▇, ▇▇▇▇ ▇▇ or CarrAmerica LP, as applicable, as of a date not
more than forty-five (45) days prior to the Closing Date,
together with a good standing certificate from the Secretary of
State (or the equivalent thereof) of Maryland with respect to
▇▇▇▇ and a good standing certificate from the Secretary of State
(or the equivalent thereof) of Delaware with respect to ▇▇▇▇ ▇▇
and CarrAmerica LP and from the Secretary of State (or the
equivalent thereof) of each other State in which ▇▇▇▇, ▇▇▇▇ ▇▇
and CarrAmerica LP is required to be qualified to transact
business, each to be dated not more than forty-five (45) days
prior to the Closing Date;
59
(f) the Lead Agent shall have received all certificates,
agreements and other documents and papers referred to in this Section 3.1 and
Section 3.2, unless otherwise specified, in sufficient counterparts,
satisfactory in form and substance to the Lead Agent in its sole discretion;
(g) the Borrowers and CarrAmerica LP shall have taken all
actions required to authorize the execution and delivery of this Agreement and
the other Loan Documents and the performance thereof by the Borrowers and
CarrAmerica LP;
(h) the Lead Agent shall have received an unaudited
consolidated balance sheet and income statement of ▇▇▇▇ for the fiscal quarter
ended [December 31], 1997;
(i) the Lead Agent shall have received wire transfer
instructions in connection with the Loans to be made on the Closing Date;
(j) the Lead Agent shall have received, for its and any other
Bank's account, all fees due and payable pursuant to Section 2.8 hereof on or
before the Closing Date, and the reasonable fees and expenses accrued through
the Closing Date of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP;
(k) the Lead Agent shall have received copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower and CarrAmerica LP, and the validity
and enforceability, of the Loan Documents, or in connection with any of the
transactions contemplated thereby, and such consents, licenses and approvals
shall be in full force and effect;
(l) the Lead Agent shall have received satisfactory reports of
Uniform Commercial Code filing searches conducted by a search firm acceptable to
the Lead Agent with respect to the Borrowers, such searches to be conducted in
each of the locations specified by the Lead Agent;
(m) no material defaults or Events of Default (as defined
therein) shall exist under the Existing Credit Agreement or any existing
agreement entered into by either Borrower or CarrAmerica LP in connection with
any Debt of such Borrower or CarrAmerica LP;
60
(n) the representations and warranties of the Borrowers and
CarrAmerica LP contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date both before and after giving
effect to the making of any Loans;
(o) receipt by the Lead Agent and the Banks of a certificate
of the chief financial officer or the chief accounting officer of ▇▇▇▇
certifying that the Borrowers and CarrAmerica LP are in compliance with all
covenants of the Borrowers and CarrAmerica LP contained in this Agreement,
including, without limitation, the requirements of Section 5.8, as of the
Closing Date.
The Lead Agent shall promptly notify the Borrowers and CarrAmerica LP and the
Banks of the Closing Date, and such notice shall be conclusive and binding on
all parties hereto.
SECTION 3.2. Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing or to participate in any Letter of Credit
issued by the Fronting Bank and the obligation of the Fronting Bank to issue a
Letter of Credit on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:
(a) the Closing Date shall have occurred on or prior to
March 30, 1998;
(b) receipt by the Lead Agent of a Notice of Borrowing as
required by Section 2.2 or Section 2.3;
(c) immediately after such Borrowing, the Outstanding
Balance will not exceed the aggregate amount of the Commitments
and with respect to each Bank, such Bank's pro rata portion of
the Loans and Letter of Credit Usage will not exceed such Bank's
Commitment;
(d) immediately before and after such Borrowing, no Default
or Event of Default shall have occurred and be continuing both
before and after giving effect to the making of such Loans;
(e) the representations and warranties of the Borrowers and
CarrAmerica LP contained in this Agreement shall be true and
correct in all material respects on and as of the date of such
61
Borrowing both before and after giving effect to the making of
such Loans;
(f) no law or regulation shall have been adopted, no order,
judgment or decree of any governmental authority shall have been
issued, and no litigation shall be pending or threatened, which
does or, with respect to any threatened litigation, seeks to
enjoin, prohibit or restrain, the making or repayment of the
Loans, the issuance of any Letters of Credit or any
participations therein or the consummation of the transactions
contemplated hereby; and
(g) no event, act or condition shall have occurred after the
Closing Date which, in the reasonable judgment of the Lead Agent
or the Required Banks, as the case may be, has had or is likely
to have a Material Adverse Effect.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the applicable Borrower and CarrAmerica LP, if applicable, on the date of such
Borrowing as to the facts specified in clauses (c) through (g) of this Section
(except that with respect to clause (f), such representation and warranty shall
be deemed to be limited to laws, regulations, orders, judgments, decrees and
litigation affecting the Borrowers or CarrAmerica LP and not solely the Banks).
SECTION 3.3. New Acquisitions and Additional Real Property
Assets. All New Acquisitions or Real Property Assets may be added to the
Unencumbered Asset Pool Properties upon written notice from either Borrower to
The Lead Agent specifying that such New Acquisition has been acquired and that
the same qualify as an Unencumbered Asset Pool Property.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lead Agent and each of the other Banks which may
become a party to this Agreement to make the Loans, the applicable Borrower or
CarrAmerica LP makes the following representations and warranties as of the date
hereof. Such representations and warranties shall survive the effectiveness of
62
this Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.
SECTION 4.1. Existence and Power of ▇▇▇▇. ▇▇▇▇ is duly
organized, validly existing and in good standing as a corporation under the laws
of the State of Maryland and has all powers and all material governmental
licenses, authorizations, consents and approvals required to own its property
and assets and carry on its business as now conducted or as it presently
proposes to conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
SECTION 4.2. Existence and Power of ▇▇▇▇ ▇▇ and CarrAmerica
LP. ▇▇▇▇ ▇▇ and CarrAmerica LP are each duly organized, validly existing and in
good standing as a limited partnership under the laws of the State of Delaware
and each has all powers and all material governmental licenses, authorizations,
consents and approvals required to own its property and assets and carry on its
business as now conducted or as it presently proposes to conduct and each has
been duly qualified and is in good standing in every jurisdiction in which the
failure to be so qualified and/or in good standing is likely to have a Material
Adverse Effect.
SECTION 4.3. Power and Authority of ▇▇▇▇. ▇▇▇▇ has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of each of the Loan Documents to which it is a party and has taken
all necessary action to authorize the execution and delivery on behalf of ▇▇▇▇
and the performance by ▇▇▇▇ of such Loan Documents. ▇▇▇▇ has duly executed and
delivered each Loan Document to which it is a party, and each such Loan Document
constitutes the legal, valid and binding obligation of ▇▇▇▇, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
insolvency, bankruptcy or other laws affecting creditors rights generally, or
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law.
SECTION 4.4. Power and Authority of ▇▇▇▇ ▇▇ and CarrAmerica
LP. ▇▇▇▇ ▇▇ and CarrAmerica LP each have the partnership power and authority to
execute, deliver and carry out the terms and provisions of each of the Loan
Documents to which it is a party and has taken all necessary action to authorize
the execution and delivery on behalf of ▇▇▇▇ ▇▇ or CarrAmerica LP, as
applicable, and the performance by ▇▇▇▇ ▇▇ or CarrAmerica LP, as applicable, of
such Loan Documents. ▇▇▇▇ ▇▇ and CarrAmerica LP have each duly executed and
63
delivered each Loan Document to which it is a party, and each such Loan Document
constitutes the legal, valid and binding obligation of ▇▇▇▇ ▇▇ or CarrAmerica
LP, as applicable, enforceable in accordance with its terms, except as
enforceability may be limited by applicable insolvency, bankruptcy or other laws
affecting creditors rights generally, or general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
SECTION 4.5. No Violation. Neither the execution, delivery or
performance by or on behalf of the Borrowers or CarrAmerica LP of the Loan
Documents, nor compliance by the Borrowers or CarrAmerica LP with the terms and
provisions thereof nor the consummation of the transactions contemplated by the
Loan Documents, (i) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality or (ii) will conflict with or result in any breach
of, any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrowers
or CarrAmerica LP pursuant to the terms of any indenture, mortgage, deed of
trust, or other agreement or other instrument to which the Borrowers or
CarrAmerica LP (or of any partnership of which either Borrower is a partner) is
a party or by which it or any of its property or assets is bound or to which it
is subject or (iii) will cause a default by either Borrower or CarrAmerica LP
under any organizational document of any Subsidiary, or cause a default under
▇▇▇▇'▇ articles of incorporation or by-laws or ▇▇▇▇ LP's or CarrAmerica LP's
agreement of limited partnership.
SECTION 4.6. Financial Information
(a) The unaudited consolidated balance sheet of ▇▇▇▇ as of
[December 31], 1997, a copy of which has been delivered to the Lead Agent,
fairly presents, in conformity with generally accepted accounting principles,
the consolidated financial position of ▇▇▇▇ as of such date and its consolidated
results of operations for such fiscal year.
64
(b) Since [December 31], 1997, (i) there has been no material adverse
change in the business, financial position or results of operations of the
Borrowers and (ii) except as previously disclosed to the Lead Agent or as
publicly disclosed, neither the Borrowers nor CarrAmerica LP have incurred any
material indebtedness or guaranty.
SECTION 4.7. Litigation.
(a) There is no action, suit or proceeding pending against, or
to the knowledge of the Borrowers or CarrAmerica LP, threatened against or
affecting, (i) the Borrowers or CarrAmerica LP or any of their Subsidiaries,
(ii) the Loan Documents or any of the transactions contemplated by the Loan
Documents or (iii) any of their assets, in any case before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable likelihood of an adverse decision which could, individually or in the
aggregate, have a Material Adverse Effect or which in any manner draws into
question the validity of this Agreement or the other Loan Documents.
(b) There are no final nonappealable judgments or decrees in
an aggregate amount of Five Million Dollars ($5,000,000) or more entered by a
court or courts of competent jurisdiction against the Borrowers or either
Borrower or CarrAmerica LP (other than any judgment as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim in
writing).
SECTION 4.8. Compliance with ERISA.
(a) Except as previously disclosed to the Lead Agent in
writing, each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
65
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
(b) The transactions contemplated by the Loan Documents will
not constitute a nonexempt prohibited transaction (as such term is defined in
Section 4975 of the Code or Section 406 of ERISA) that could subject the Lead
Agent or the Banks to any tax or penalty or prohibited transactions imposed
under Section 4975 of the Code or Section 502(i) of ERISA.
SECTION 4.9. Environmental Matters. In the ordinary course of
its business, the Borrowers and CarrAmerica LP each review the effect of
Environmental Laws on the business, operations and properties of the Borrowers
and their subsidiaries or CarrAmerica LP, as applicable, in the course of which
they identify and evaluate associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, any costs or liabilities
in connection with off-site disposal of wastes or Hazardous Substances, and any
actual or potential liabilities to third parties, including employees, and any
related costs and expenses). On the basis of this review, the Borrowers and
CarrAmerica LP have reasonably concluded that such associated liabilities and
costs, including the costs of compliance with Environmental Laws, are unlikely
to have a Material Adverse Effect.
SECTION 4.10. Taxes. The initial tax year of each Borrower for
federal income tax purposes was 1993. The initial tax year of CarrAmerica LP for
federal income tax purposes was 1996. The Borrowers and their subsidiaries and
CarrAmerica LP have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any assessment received by
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the Borrowers or any subsidiary. The charges, accruals and reserves on the books
of the Borrowers and their subsidiaries and CarrAmerica LP in respect of taxes
or other governmental charges are, in the opinion of the Borrowers and
CarrAmerica LP, adequate.
SECTION 4.11. Full Disclosure. All information heretofore
furnished by the Borrowers or CarrAmerica LP to the Lead Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is true and accurate in all material respects on the date as of which
such information is stated or certified. The Borrowers and CarrAmerica LP have
disclosed to the Banks in writing any and all facts known to the Borrowers or
CarrAmerica LP which materially and adversely affect or are likely to materially
and adversely affect (to the extent the Borrowers or CarrAmerica LP can now
reasonably foresee), the business, operations or financial condition of the
Borrowers and CarrAmerica LP considered as one enterprise or the ability of the
Borrowers or CarrAmerica LP, as applicable, to perform their obligations under
this Agreement or the other Loan Documents.
SECTION 4.12. Solvency. On the Closing Date and after giving
effect to the transactions contemplated by the Loan Documents occurring on the
Closing Date, each Borrower and CarrAmerica LP is Solvent.
SECTION 4.13. Use of Proceeds; Margin Regulations. All
proceeds of the Loans will be used by the Borrowers only in accordance with the
provisions hereof. No part of the proceeds of any Loan will be used by the
Borrowers to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock. Neither the making
of any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulations G, T, U or X of the Federal Reserve Board.
SECTION 4.14. Governmental Approvals. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of any Loan Document
or the consummation of any of the transactions contemplated thereby other than
those that have already been duly made or obtained and remain in full force and
effect.
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SECTION 4.15. Investment Company Act; Public Utility Holding
Company Act. Neither Borrower nor CarrAmerica LP is (x) an "investment company"
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended, (y) a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (z) subject to any other
federal or state law or regulation which purports to restrict or regulate its
ability to borrow money.
SECTION 4.16. Closing Date Transactions. On the Closing Date
and immediately prior to the making of the Loans, the transactions (other than
the making of the Loans) intended to be consummated on the Closing Date will
have been consummated in accordance with all applicable laws. All consents and
approvals of, and filings and registrations with, and all other actions by, any
Person required in order to make or consummate such transactions have been
obtained, given, filed or taken and are in full force and effect.
SECTION 4.17. Representations and Warranties in Loan
Documents. All representations and warranties made by the Borrowers and
CarrAmerica LP in the Loan Documents are true and correct in all material
respects.
SECTION 4.18. Patents, Trademarks, etc. Each Borrower and
CarrAmerica LP has obtained and holds in full force and effect all patents,
trademarks, service marks, trade names, copyrights and other such rights, free
from burdensome restrictions, which are necessary for the operation of its
business as presently conducted, the impairment of which is likely to have a
Material Adverse Effect. To the Borrowers' and CarrAmerica LP's knowledge, no
material product, process, method, substance, part or other material presently
sold by or employed by the Borrowers or CarrAmerica LP in connection with such
business infringes any patent, trademark, service ▇▇▇▇, trade name, copyright,
license or other such right owned by any other Person. There is not pending or,
to the Borrowers' and CarrAmerica LP's knowledge, threatened any claim or
litigation against or affecting either Borrower or CarrAmerica LP contesting its
right to sell or use any such product, process, method, substance, part or other
material.
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SECTION 4.19. No Default. No Default or Event of Default
exists under or with respect to any Loan Document. Neither Borrower nor
CarrAmerica LP is in default in any material respect beyond any applicable grace
period under or with respect to any other material agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound in any respect, the existence of which default is likely (to the extent
that the Borrowers or CarrAmerica LP, as applicable, can now reasonably foresee)
to result in a Material Adverse Effect.
SECTION 4.20. Licenses, etc. Each Borrower and CarrAmerica LP
has obtained and holds in full force and effect, all franchises, licenses,
permits, certificates, authorizations, qualifications, accreditations,
easements, rights of way and other consents and approvals which are necessary
for the operation of its businesses as presently conducted, the absence of which
is likely (to the extent that the Borrowers or CarrAmerica LP, as applicable,
can now reasonably foresee) to have a Material Adverse Effect.
SECTION 4.21. Compliance with Law. Each Borrower and
CarrAmerica LP is in compliance with all laws, rules, regulations, orders,
judgments, writs and decrees, including, without limitation, all building and
zoning ordinances and codes, the failure to comply with which is likely (to the
extent that the Borrowers or CarrAmerica LP, as applicable, can now reasonably
foresee) to have a Material Adverse Effect.
SECTION 4.22. No Burdensome Restrictions. Neither Borrower nor
CarrAmerica LP is a party to any agreement or instrument or subject to any other
obligation or any charter or corporate or partnership restriction, as the case
may be, which, individually or in the aggregate, is likely (to the extent that
the Borrowers or CarrAmerica LP, as applicable, can now reasonably foresee) to
have a Material Adverse Effect.
SECTION 4.23. Brokers' Fees. Neither Borrower nor CarrAmerica
LP has dealt with any broker or finder with respect to the transactions
contemplated by the Loan Documents (except with respect to the acquisition or
disposition of Real Property Assets) or otherwise in connection with this
Agreement, and neither Borrower nor CarrAmerica LP has done any acts, had any
negotiations or conversation, or made any agreements or promises which will in
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any way create or give rise to any obligation or liability for the payment by
the Borrower or CarrAmerica LP of any brokerage fee, charge, commission or other
compensation to any party with respect to the transactions contemplated by the
Loan Documents (except with respect to the acquisition or disposition of Real
Property Assets), other than the fees payable hereunder.
SECTION 4.24. Labor Matters. There are no collective
bargaining agreements or Multiemployer Plans covering the employees of the
Borrowers or CarrAmerica LP and the Borrowers or CarrAmerica LP have not
suffered any strikes, walkouts, work stoppages or other material labor
difficulty within the last five (5) years.
SECTION 4.25. Organizational Documents. The documents
delivered pursuant to Section 3.1(e) constitute, as of the Closing Date, all of
the organizational documents (together with all amendments and modifications
thereof) of the Borrowers. The Borrowers represent that they have delivered to
the Lead Agent true, correct and complete copies of each of the documents set
forth in this Section 4.25. CarrAmerica LP represents that it has delivered to
the Lead Agent and the Banks true, correct and complete copies of all of the
organizational documents (together with all amendments and modifications
thereof) of CarrAmerica LP as of the Closing Date.
SECTION 4.26. Principal Offices. The principal office, chief
executive office and principal place of business of each of the Borrowers and
CarrAmerica LP is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
SECTION 4.27. REIT Status. For the fiscal year ended December
31, 1996, ▇▇▇▇ qualified and ▇▇▇▇ intends to continue to qualify as a real
estate investment trust under the Code.
SECTION 4.18. Ownership of Property. Schedule 4.28 attached
hereto and made a part hereof sets forth all the real property owned or leased
by the Borrowers and Persons in which the Borrowers, directly or indirectly, own
an interest as of the Closing Date. As of the Closing Date, each Borrower and
such Persons have good and insurable fee simple title (or leasehold title if so
designated on Schedule 4.28) to all of such real property, subject to customary
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encumbrances and liens as of the date of this Agreement. As of the date of this
Agreement, there are no mortgages, deeds of trust, indentures, debt instruments
or other agreements creating a Lien against any of the Real Property Assets
except as disclosed on Schedule 4.28.
SECTION 4.29. Insurance. Each Borrower and CarrAmerica LP
currently maintains, or causes its tenants to maintain, insurance at 100%
replacement cost insurance coverage (subject to customary deductibles) in
respect of each of the Real Property Assets, as well as commercial general
liability insurance (including "builders' risk") against claims for personal,
and bodily injury and/or death, to one or more persons, or property damage, as
well as workers' compensation insurance, in each case with respect to the Real
Property Assets with insurers having an A.M. Best policyholders' rating of not
less than A-IX in amounts that prudent owner of assets such as the Real Property
Assets would maintain.
SECTION 4.30. Year 2000 Compliance. Each Borrower and
CarrAmerica LP has conducted a comprehensive review and assesment of its
computer applications and has made such inquiry as it determined to be advisable
of its key suppliers, vendors and customers or prospects with respect to the
"year 2000 problem" (i.e., the risk that computer applications may not be able
to properly perform date-sensitive functions after December 31, 1999) and, based
on that review and inquiry, neither Borrower nor CarrAmerica LP believes that
the year 2000 problem will result in a material adverse change in its business
condition (financial or otherwise), operations, properties or prospects, or
ability to repay the Loans.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
Each Borrower and CarrAmerica LP covenant and agree that, so long as
any Bank has any Commitment hereunder or any Obligations remain unpaid:
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SECTION 5.1. Information. The applicable Borrower will deliver
to the Lead Agent and to each of the Banks:
(a) as soon as available and in any event within 105 days
after the end of each fiscal year of ▇▇▇▇, an audited
consolidated balance sheet of ▇▇▇▇ as of the end of such fiscal
year and the related consolidated statements of cash flow and
operations for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year,
audited by KPMG Peat Marwick LLP or other independent public
accountants of similar standing;
(b) as soon as available and in any event within fifty (50)
days after the end of each quarter of each fiscal year of ▇▇▇▇, a
statement of ▇▇▇▇, prepared on a GAAP basis, setting forth the
operating income and operating expenses of ▇▇▇▇, in sufficient
detail so as to calculate net operating cash flow of ▇▇▇▇ for the
immediately preceding quarter;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
certificate of the chief financial officer or the chief
accounting officer of ▇▇▇▇ (i) setting forth in reasonable detail
the calculations required to establish whether the Borrowers were
in compliance with the requirements of Section 5.8 on the date of
such financial statements;(ii) stating whether any Default exists
on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the
applicable Borrower or CarrAmerica LP is taking or proposes to
take with respect thereto; and (iii) certifying (x) that such
financial statements fairly present the financial condition and
the results of operations of ▇▇▇▇ as of the dates and for the
periods indicated, on the basis of generally accepted accounting
principles, subject, in the case of interim financial statements,
to normal year-end adjustments, and (y) that such officer has
reviewed the terms of the Loan Documents and has made, or caused
to be made under his or her supervision, a review in reasonable
detail of the business and condition of the applicable Borrower
or CarrAmerica LP during the period beginning on the date through
which the last such review was made pursuant to this Section
5.1(c) (or, in the case of the first certification pursuant to
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this Section 5.1(c), the Closing Date) and ending on a date not
more than ten (10) Domestic Business Days prior to the date of
such delivery and that on the basis of such review of the Loan
Documents and the business and condition of the applicable
Borrower or CarrAmerica LP, to the best knowledge of such
officer, no Default or Event of Default under any other provision
of Section 6.1 occurred or, if any such Default or Event of
Default has occurred, specifying the nature and extent thereof
and, if continuing, the action the applicable Borrower or
CarrAmerica LP proposes to take in respect thereof;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a statement
of the firm of independent public accountants which reported on
such statements confirming the calculations set forth in the
officer's certificate delivered simultaneously therewith pursuant
to clause (c) above;
(e) (i) within five (5) days after the president, chief
financial officer, treasurer, controller or other executive
officer of either Borrower or CarrAmerica LP obtains knowledge of
any Default, if such Default is then continuing, a certificate of
the chief financial officer or the president of such Borrower or
CarrAmerica LP setting forth the details thereof and the action
which such Borrower or CarrAmerica LP is taking or proposes to
take with respect thereto; (ii) promptly and in any event within
ten (10) days after either Borrower or CarrAmerica LP obtains
knowledge thereof, notice of (x) any litigation or governmental
proceeding pending or threatened against the Borrower or
CarrAmerica LP, as applicable, as to which, if adversely
determined, is likely to individually or in the aggregate, result
in a Material Adverse Effect, and (y) any other event, act or
condition which is likely to result in a Material Adverse Effect;
(f) if and when any member of the ERISA Group (i) gives or
is required to give notice to the PBGC of any "reportable event"
(as defined in Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice
of complete or partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in reorganization,
is insolvent or has been terminated, a copy of such notice; (iii)
receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or appoint a trustee
to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the
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Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted
or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial
officer or the chief accounting officer of such Borrower or
CarrAmerica LP setting forth details as to such occurrence and
action, if any, which such Borrower, CarrAmerica LP or applicable
member of the ERISA Group is required or proposes to take;
(g) promptly and in any event within five (5) Domestic
Business Days after either Borrower or CarrAmerica LP obtains
actual knowledge of any of the following events, a certificate of
the applicable Borrower or CarrAmerica LP, executed by an officer
of the applicable Borrower or CarrAmerica LP, specifying the
nature of such condition and such Borrower's or CarrAmerica LP's,
if the applicable Borrower or CarrAmerica LP, as the case may be,
has actual knowledge thereof, the Environmental Affiliate's
proposed initial response thereto: (i) the receipt by the
applicable Borrower or CarrAmerica LP, or, if such Borrower or
CarrAmerica LP has actual knowledge thereof, any of the
Environmental Affiliates, of any communication (written or oral),
whether from a governmental authority, citizens group, employee
or otherwise, that alleges that the applicable Borrower or
CarrAmerica LP, or, if the applicable Borrower or CarrAmerica LP
has actual knowledge thereof, any of the Environmental
Affiliates, is not in compliance with applicable Environmental
Laws, and such noncompliance is likely to have a Material Adverse
Effect, (ii) the applicable Borrower or CarrAmerica LP shall
obtain actual knowledge that there exists any Environmental Claim
pending or threatened against the applicable Borrower,
CarrAmerica LP or any Environmental Affiliate or (iii) the
applicable Borrower obtains actual knowledge of any release,
emission, discharge or disposal of any Materials of Environmental
Concern that are likely to form the basis of any Environmental
Claim against the applicable Borrower, CarrAmerica LP or any
Environmental Affiliate;
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(h) promptly and in any event within five (5) Domestic Business Days
after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to either Borrower or
CarrAmerica LP relating to any material loss or loss in excess of $1,500,000 of
the applicable Borrower or CarrAmerica LP, copies of such notices and
correspondence; and
(i) promptly upon the mailing thereof to the shareholders or partners
of either Borrower or CarrAmerica LP, copies of all financial statements,
reports and proxy statement so mailed;
(j) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which either Borrower or CarrAmerica LP shall have filed with the
Securities and Exchange Commission;
(k) simultaneously with delivery of the certificate required pursuant
to Section 5.1(c), an updated Schedule 4.28, certified by the chief financial
officer or any senior vice president or executive vice president of ▇▇▇▇ as
true, correct and complete as of the date such updated schedules are delivered;
(l) within 5 days after filing of the annual income tax return with the
Internal Revenue Service, a certificate of the chief financial officer or chief
accounting officer of ▇▇▇▇ certifying that ▇▇▇▇ is properly classified and
continues to qualify as a real estate investment trust under the Internal
Revenue Code and has taken all actions consistent with maintaining such status;
(m) simultaneously with delivery of the information required by
Sections 5.1(a) and (b), a statement of Unencumbered Asset Pool Net Operating
Cash Flow with respect to each Unencumbered Asset Pool Property and a list of
all Unencumbered Asset Pool Properties and a statement with respect to the
occupancy at the end of the relevant period for each Unencumbered Asset Pool
Property; and
(n) from time to time such additional information regarding the
financial position or business of the Borrowers as the Lead Agent, at the
request of any Bank, may reasonably request.
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SECTION 5.2. Payment of Obligations. Each Borrower and
CarrAmerica LP will pay and discharge, at or before maturity, all its material
obligations and liabilities including, without limitation, any obligation
pursuant to any agreement by which it or any of its properties is bound and any
tax liabilities, except where such tax liabilities may be contested in good
faith by appropriate proceedings, and will maintain in accordance with generally
accepted accounting principles, appropriate reserves for the accrual of any of
the same, in any case, where failure to do so will likely result in a Material
Adverse Effect.
SECTION 5.3. Maintenance of Property; Insurance.
(a) Each Borrower and CarrAmerica LP will keep, and will cause
each of its Subsidiaries to keep, all property useful and necessary in its
business, including, without limitation, the Real Property Assets, in good
repair, working order and condition, ordinary wear and tear and the provisions
of any mortgage with respect to casualty or condemnation events excepted.
(b) Each Borrower and CarrAmerica LP shall or shall cause the
Subsidiaries to maintain "all risk" insurance covering 100% replacement cost of
its real property assets with insurers having an A.M. Best policyholder's rating
of not less than A-VIII, which insurance shall in any event not provide for
materially less coverage than the insurance in effect on the Closing Date, and
furnish to each Bank from time to time, upon written request, copies of
certificates of insurance under which such insurance is issued and such other
information relating to such insurance as such Bank may reasonably request.
SECTION 5.4. Conduct of Business. Each Borrower and
CarrAmerica LP will continue to engage in business of the same general type as
now conducted by each Borrower and CarrAmerica LP, as the case may be.
SECTION 5.5. Compliance with Laws. Each Borrower and
CarrAmerica LP will comply in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws, all zoning and building
76
codes and ERISA and the rules and regulations thereunder) except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings.
SECTION 5.6. Inspection of Property, Books and Records. The
Borrowers and CarrAmerica LP will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit
representatives of any Bank at such Bank's expense to visit and inspect any of
its properties to examine and make abstracts from any of its books and records
and to discuss its affairs, finances and accounts with its officers, employees
and independent public accountants, all at such reasonable times, upon
reasonable notice, and as often as may reasonably be desired.
SECTION 5.7. Existence.
(a) Each Borrower and CarrAmerica LP shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence or its partnership existence, as applicable.
(b) Each Borrower and CarrAmerica LP shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
patents, trademarks, servicemarks, tradenames, copyrights, franchises, licenses,
permits, certificates, authorizations, qualifications, accreditations,
easements, rights of way and other rights, consents and approvals the
nonexistence of which is likely to have a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
(a) Debt Service Coverage. Measured as of the last day of each
calendar quarter, the ratio of (i) Annual EBITDA to (ii) the sum of (x) Debt
Service plus (y) reserves for Capital Expenditures of $1.50 per square foot per
annum for each Real Property Asset, will not be less than 1.75:1.
(b) Maximum Total Debt to Tangible FMV. As of the last day of
each calendar quarter, the Maximum Total Debt Ratio will not be greater than
50%.
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(c) ▇▇▇▇ Maximum Total Debt to ▇▇▇▇ Tangible FMV. As of the
last day of each calendar quarter, the ▇▇▇▇ Maximum Total Debt Ratio will not be
greater than 50%.
(d) ▇▇▇▇ ▇▇ Maximum Total Debt to ▇▇▇▇ ▇▇ Tangible FMV. As of
the last day of each calendar quarter, the ▇▇▇▇ ▇▇ Maximum Total Debt Ratio will
not be greater than 60%.
(e) EBITDA Interest Coverage. As of the last day of each
calendar quarter, the ratio of (x) Annual EBITDA to (y) interest (whether
accrued, paid or capitalized) actually payable by either Borrower or the
Borrowers on its Debt for the previous four consecutive quarters including the
quarter then ended, will not be less than 2.25:1.
(f) EBITDA Coverage. As of the last day of each calendar
quarter, the ratio of (x) Annual EBITDA to (y) the sum of (i) Debt Service plus
(ii) Capital Expenditures of the Borrowers for the previous four consecutive
quarters including the quarter then ended plus (iii) dividends or other payments
payable by ▇▇▇▇ with respect to any preferred stock issued by ▇▇▇▇, will not be
less than 1.25:1.
(g) Dividends. ▇▇▇▇ will not, as determined on an aggregate
annual basis, pay any dividends in excess of 90% of ▇▇▇▇'▇ consolidated FFO for
such year. During the continuance of an Event of Default under Section 6.1(a),
▇▇▇▇ shall only pay those dividends necessary to maintain its status as a real
estate investment trust.
(h) Borrowers LTV Ratio. As of the last day of each calendar
quarter and as of the date of any New Acquisition, the Borrowers LTV Ratio shall
not exceed 50%, subject, however, to the Borrowers' rights to cure pursuant to
Section 2.10(a). Failure to restore compliance with this Section 5.8(h) in
accordance with Section 2.10(a) shall be an immediate Event of Default.
(i) ▇▇▇▇ LTV Ratio. As of the last day of each calendar
quarter and as of the date of any New Acquisition, the ▇▇▇▇ LTV Ratio shall not
exceed 50%, subject, however, to ▇▇▇▇'▇ rights to cure pursuant to Section
2.10(d). Failure to restore compliance with this Section 5.8(i) in accordance
with Section 2.10(d) shall be an immediate Event of Default.
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(j) ▇▇▇▇ ▇▇ LTV Ratio. As of the last day of each calendar
quarter and as of the date of any New Acquisition, the ▇▇▇▇ ▇▇ LTV Ratio shall
not exceed 50%, subject, however, to ▇▇▇▇ LP's rights to cure pursuant to
Section 2.10(e). Failure to restore compliance with this Section 5.8(j) in
accordance with Section 2.10(e) shall be an immediate Event of Default.
(k) Unencumbered Asset Pool Properties Minimum Debt Service
Coverage. As of the last day of each calendar quarter, the Borrowers shall be in
compliance with the Unencumbered Asset Pool Properties Minimum Debt Service
Coverage, subject, however, to the Borrowers' rights to cure pursuant to Section
2.10(c). Failure to restore compliance with this Section 5.8(k) in accordance
with Section 2.10(c) shall be an immediate Event of Default.
(l) Minimum Consolidated Tangible Net Worth. The Consolidated
Tangible Net Worth will at no time be less the sum of (x) $1,000,000,000 and (y)
90% of the Net Offering Proceeds from and after the date hereof.
SECTION 5.9. Restriction on Fundamental Changes; Operation and
Control. (a) ▇▇▇▇ shall carry on its business operations through ▇▇▇▇ and its
Subsidiaries. Neither Borrower nor CarrAmerica LP shall enter into any merger or
consolidation, unless such Borrower or CarrAmerica LP, as applicable, is the
surviving entity, or liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), discontinue its business or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or series of transactions, all or any
substantial part of its business or property, whether now or hereafter acquired,
hold an interest in any subsidiary which is not controlled by such Borrower or
CarrAmerica LP, as applicable, or enter into other business lines, without the
prior written consent of the Required Banks, except for (i) joint ventures in
which ▇▇▇▇'▇ ownership interest shall be less than 15% of the fair market value
of the Real Property Assets owned by ▇▇▇▇ as of the date hereof and (ii) ▇▇▇▇
Real Estate Services, Inc., ▇▇▇▇ Development and Construction, Inc. and any
other similar service company. For purposes hereof, "fair market value" shall
mean the quotient of (x) Net Operating Income with respect to the Real Property
Assets owned by ▇▇▇▇ as of the date hereof and (y) the FMV Cap Rate.
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(b) Neither Borrower nor CarrAmerica LP shall amend its articles of
incorporation, by-laws or agreement of limited partnership, as applicable, in
any material respect, without the Lead Agent's consent, which shall not be
unreasonably withheld.
SECTION 5.10. Changes in Business. The Borrowers and
CarrAmerica LP shall not enter into any business which is substantially
different from that conducted by the Borrowers and CarrAmerica LP on the Closing
Date after giving effect to the transactions contemplated by the Loan Documents.
SECTION 5.11. Fiscal Year; Fiscal Quarter. The Borrowers and
CarrAmerica LP shall not change their fiscal year or any of their fiscal
quarters.
SECTION 5.12. Margin Stock. None of the proceeds of the Loan
will be used, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any Margin Stock.
SECTION 5.13. Sale of Unencumbered Asset Pool Properties.
Prior to the sale or transfer of any Unencumbered Asset Pool Property, the
applicable Borrower shall (i) deliver prior written notice to the Lead Agent and
the Banks, (ii) deliver to the Lead Agent and the Banks a certificate from its
Chief Financial Officer certifying that at the time of such sale or other
disposal (based on pro-forma calculations for the previous period assuming that
such Unencumbered Asset Pool Property was not an Unencumbered Asset Pool
Property for the relevant period) all of the covenants contained in Sections 5.8
through 5.14 and 5.16 through 5.21 are and after giving effect to the
transaction shall continue to be true and accurate in all respects, and (iii)
pay to the Lead Agent an amount equal to that required pursuant to Section
2.10(b).
SECTION 5.14.Liens; Release of Liens. Neither Borrower nor any
of their Subsidiaries shall at any time during the Term directly or indirectly
create, incur, assume or permit to exist any Lien for borrowed monies or any
other Lien other than Permitted Liens unless the same is being contested in good
faith and the same is discharged, bonded off or paid within thirty (30) days of
filing of such Lien, on or with respect to any Unencumbered Asset Pool Property.
Notwithstanding the foregoing, the Borrowers may obtain a release from the terms
of this Agreement of any Unencumbered Asset Pool Property provided that such
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Borrower has complied with Section 2.10(b) and prior to or simultaneously with
such release (i) such Borrower shall pay to the Lead Agent any amounts due
pursuant to Section 2.10(b), and (ii) such Borrower delivers to the Lead Agent
and the Banks a certificate from its Chief Financial Officer certifying that at
the time of the release all of the covenants contained in Sections 5.8 through
5.14 and 5.16 through 5.21 are and after giving effect to the transaction shall
continue to be true and accurate in all respects.
SECTION 5.15. Use of Proceeds. The Borrowers and CarrAmerica
LP shall use the proceeds of the Loans solely (i) to facilitate the acquisition
by ▇▇▇▇ (either directly or indirectly through Subsidiaries) of real properties
(or interests therein) (the "New Acquisitions") which are office buildings (it
being understood that ▇▇▇▇ ▇▇ may distribute, lend or otherwise transfer the
proceeds of a Tranche B Loan to ▇▇▇▇ for such purpose, and that ▇▇▇▇ may
distribute, lend or otherwise transfer the proceeds of a Tranche A Loan (or the
proceeds of a Tranche B Loan received from ▇▇▇▇ ▇▇) to a Subsidiary for such
purpose), (ii) for other purposes related to the acquisition of office buildings
(including, without limitation, the acquisition of property service companies in
connection therewith and the payment of fees and other costs related to such
acquisition), (iii) for working capital purposes, (iv) for development and
construction activities in accordance with Section 5.16 hereof or (v) for
additional investments in Omni Offices, Inc.
SECTION 5.16. Development Activities. Neither the Borrowers
nor CarrAmerica LP shall have invested more than an amount in the aggregate as
to all such Persons in any current development and construction activities,
equal to ten percent (10%) of Tangible FMV at any time other than (i)
development of "build-to-suit" improvements in excess of 85% pre-leased to
tenants (in connection with which the Borrowers and CarrAmerica LP shall have no
construction completion risk) or (ii) development in connection with the
expansion and/or repositioning or restoration following a casualty or
condemnation of existing improvements on Real Property Assets.
SECTION 5.17. Restrictions on Secured Debt. Neither of the
Borrowers nor CarrAmerica LP shall incur Debt secured by a Lien which in the
aggregate exceeds 30% of Tangible FMV.
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SECTION 5.18. ▇▇▇▇'▇ Status. ▇▇▇▇ shall at all times (i)
remain a publicly traded company listed on the New York Stock Exchange, and (ii)
maintain its status as a self-directed and self-administered real estate
investment trust under the Internal Revenue Code.
SECTION 5.19. Certain Requirements for the Unencumbered Asset
Pool Properties. At all times, the Unencumbered Asset Pool Properties Value of
the Unencumbered Asset Pool Properties which are less than 85% leased to tenants
(including as leased any space for which a lease termination payment has been
made to either Borrower or CarrAmerica LP but only for the period for which such
payment shall cover the rental income for such space) shall not comprise more
than 20% of the Unencumbered Asset Pool Properties Value. In the event that the
requirements of this Section 5.19 are not satisfied, the Borrowers and
CarrAmerica LP shall be prohibited from further Borrowings unless such Borrower
or CarrAmerica LP adds a New Acquisition or Real Property Asset to the
Unencumbered Asset Pool Properties in accordance with this Agreement in order to
restore compliance with the requirements of this provision. Failure to restore
compliance with the requirements of this Section 5.19 within 90 days of such
non-compliance shall be an Event of Default.
SECTION 5.20. Heging Requirements. The Borrowers and
CarrAmerica LP shall maintain "Interest Rate ▇▇▇▇▇▇" (as defined below) on a
notional amount of the Debt of the Borrowers and CarrAmerica LP and their
Subsidiaries which, when added to the aggregate principal amount of the Debt of
the Borrowers, CarrAmerica LP and their Subsidiaries which bears interest at a
fixed rate, equals or exceeds 75% of the aggregate principal amount of all Debt
of the Borrowers and CarrAmerica LP and their Subsidiaries. "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 Lead Agent entered into by the Borrowers
and/or CarrAmerica LP and/or their Subsidiaries in order to provide protection
to, or minimize the impact upon, the Borrowers and/or CarrAmerica LP and/or such
Subsidiaries of increasing floating rates of interest applicable to Debt.
SECTION 5.21. Transfer of Real Property Assets. Neither ▇▇▇▇
nor CarrAmerica LP shall transfer its interest or any portion of any interest in
any Real Property Asset to ▇▇▇▇ ▇▇.
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SECTION 5.22. CarrAmerica Realty GP Holdings, Inc. ▇▇▇▇ hereby
covenants that at all times CarrAmerica Realty GP Holdings, Inc. shall remain a
wholly-owned Subsidiary of ▇▇▇▇.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) either Borrower or CarrAmerica LP shall fail to pay when
due any principal of any Loan, or either Borrower or CarrAmerica
LP shall fail to pay when due any interest on any Loan, provided,
however, that a Borrower shall be entitled to a three (3)
Domestic Business Day grace period with respect thereto but only
as to two (2) payments of interest during the Term, or either
Borrower or CarrAmerica LP shall fail to pay within three (3)
Domestic Business Days after the same is due any fees or other
amounts payable hereunder;
(b) either Borrower or CarrAmerica LP shall fail to observe
or perform any covenant contained in Sections 5.7(a), 5.8 to
5.19, inclusive, or 5.21, subject to any applicable grace periods
set forth therein;
(c) either Borrower or CarrAmerica LP shall fail to observe
or perform any covenant or agreement contained in this Agreement
(other than those covered by clause (a) or (b) above) for 30 days
after written notice thereof has been given to such Borrower or
CarrAmerica LP by the Lead Agent;
(d) any representation, warranty, certification or statement
made by either Borrower or CarrAmerica LP in this Agreement or in
any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect in
any material respect when made (or deemed made);
(e) Either Borrower or CarrAmerica LP shall default in the
payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) of any amount
owing in respect of any Recourse Debt or Debt guaranteed by such
party (other than the Obligations and provided that such Debt is
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in an aggregate amount of Ten Million Dollars ($10,000,000) or
more) and such default shall continue beyond the giving of any
required notice and the expiration of any applicable grace period
(as the same may be extended by the applicable lender) and such
default shall not be waived by the applicable lender (which
waiver shall serve to reinstate the applicable loan), or either
Borrower or CarrAmerica LP shall default in the performance or
observance of any obligation or condition with respect to any
such Debt or any other event shall occur or condition exist
beyond the giving of any required notice and the expiration of
any applicable grace period (as the same may be extended by the
applicable lender), if in any such case the effect of such
default, event or condition is to accelerate the maturity of any
such Debt or to permit (without any further requirement of notice
or lapse of time) the holder or holders thereof, or any trustee
or agent for such holders, to accelerate the maturity of any such
Debt and such default shall not be waived by the applicable
lender (which waiver shall serve to reinstate the applicable
loan), or any such Debt shall become or be declared to be due and
payable prior to its stated maturity other than as a result of a
regularly scheduled payment;
(f) either Borrower or CarrAmerica LP shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as
they become due, or shall take any corporate action to authorize
any of the foregoing;
(g) an involuntary case or other proceeding shall be
commenced against either Borrower or CarrAmerica LP seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and
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unstayed for a period of 60 days; or an order for relief shall be
entered against either Borrower under the federal bankruptcy laws
as now or hereafter in effect;
(h) either Borrower or CarrAmerica LP shall default in its
obligations under any Loan Document other than this Agreement
beyond any applicable notice and grace periods;
(i) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $1,000,000 which it
shall have become liable to pay under Title IV of ERISA, or
notice of intent to terminate a Material Plan shall be filed
under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, or the
PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan, or a condition shall
exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated, or
there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans which could cause one
or more members of the ERISA Group to incur a current payment
obligation in excess of $1,000,000;
(j) one or more final nonappealable judgments or decrees in
an aggregate amount of six percent (6%) or more of the
Consolidated Tangible Net Worth as of such date shall be entered
by a court or courts of competent jurisdiction against either
Borrower or CarrAmerica LP (other than any judgment as to which,
and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing) and (i) any such
judgments or decrees shall not be stayed, discharged, paid,
bonded or vacated within thirty (30) days or (ii) enforcement
proceedings shall be commenced by any creditor on any such
judgments or decrees;
(k) (i) any Environmental Claim shall have been asserted
against either Borrower, CarrAmerica LP or any Environmental
Affiliate, (ii) any release, emission, discharge or disposal of
any Materials of Environmental Concern shall have occurred, and
such event is reasonably likely to form the basis of an
Environmental Claim against either Borrower, CarrAmerica LP or
any Environmental Affiliate, or (iii) either Borrower,
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CarrAmerica LP or the Environmental Affiliates shall have failed
to obtain any Environmental Approval necessary for the ownership,
or operation of its business, property or assets or any such
Environmental Approval shall be revoked, terminated, or otherwise
cease to be in full force and effect, in the case of clauses (i),
(ii) or (iii) above, if the existence of such condition has had
or is reasonably likely to have a Material Adverse Effect;
(l) during any consecutive two year period commencing on or
after the date hereof, individuals who at the beginning of such
period constituted the Board of Directors of ▇▇▇▇ (together with
any new directors whose election by the Board of Directors or
whose nomination for election by ▇▇▇▇ stockholders was approved
by a vote of at least a majority of the members of the Board of
Directors then in the office who either were members of the Board
of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board of
Directors then in office; or
(m) ▇▇▇▇ shall cease at any time to qualify as a real estate
investment trust under the Internal Revenue Code.
SECTION 6.2. Rights and Remedies. (a) Upon the occurrence of
any Event of Default described in Sections 6.1(f) or (g), the unpaid principal
amount of, and any and all accrued interest on, the Loans and any and all
accrued fees and other Obligations hereunder shall automatically become
immediately due and payable, with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrowers and CarrAmerica LP; and upon the occurrence and during the continuance
of any other Event of Default, the Lead Agent may exercise any of its rights and
remedies hereunder and by written notice to the Borrowers, declare the unpaid
principal amount of and any and all accrued and unpaid interest on the Loans and
any and all accrued fees and other Obligations hereunder to be, and the same
shall thereupon be, immediately due and payable with all additional interest
from time to time accrued thereon and without presentation, demand, or protest
or other requirements of any kind other than as provided in the Loan Documents
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(including, without limitation, valuation and appraisement, diligence,
presentment, and notice of intent to demand or accelerate), all of which are
hereby expressly waived by the Borrowers and CarrAmerica LP. Notwithstanding
anything contained in this Agreement to the contrary, (i) ▇▇▇▇ and CarrAmerica
LP shall be jointly and severally liable for all Obligations arising hereunder
in connection with the Tranche A Loans, (ii) ▇▇▇▇ and ▇▇▇▇ ▇▇ shall be jointly
and severally liable for all Obligations arising hereunder in connection with
the Tranche B Loans and (iii) ▇▇▇▇ ▇▇ shall not be liable for any Borrowings
made by ▇▇▇▇ or CarrAmerica LP pursuant to the terms hereof.
(b) Notwithstanding the foregoing, upon the occurrence and
during the continuance of any Event of Default other than any Event of Default
described in Sections 6.1(f) or (g), the Lead Agent shall not exercise any of
its rights and remedies hereunder nor declare the unpaid principal amount of and
any and all accrued and unpaid interest on the Loans and any and all accrued
fees and other Obligations hereunder to be immediately due and payable, until
such time as the Lead Agent shall have delivered a notice to the Banks
specifying the Event of Default which has occurred and whether Lead Agent
recommends the acceleration of the Obligations due hereunder or the exercise of
other remedies hereunder. The Banks shall notify the Lead Agent if they approve
or disapprove of the acceleration of the Obligations due hereunder or the
exercise of such other remedy recommended by Lead Agent within five (5) Domestic
Business Days after receipt of such notice. If any Bank shall not respond within
such five (5) Domestic Business Day period, then such Bank shall be deemed to
have accepted Lead Agent's recommendation for acceleration of the Obligations
due hereunder or the exercise of such other remedy. If the Required Banks shall
approve the acceleration of the Obligations due hereunder or the exercise of
such other remedy, then Lead Agent shall declare the unpaid principal amount of
and any and all accrued and unpaid interest on the Loans and any and all accrued
fees and other Obligations hereunder to be immediately due and payable or
exercise such other remedy approved by the Required Banks. If the Required Banks
shall neither approve nor disapprove the acceleration of the Obligations due
hereunder or such other remedy recommended by Lead Agent, then Lead Agent may
accelerate the Obligations due hereunder or exercise any of its rights and
remedies hereunder in its sole discretion. If the Required Banks shall
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disapprove the acceleration of the Obligations due hereunder or the exercise of
such other remedy recommended by Lead Agent, but approve of another remedy, then
to the extent permitted hereunder, Lead Agent shall exercise such remedy.
SECTION 6.3. Notice of Default. If the Lead Agent shall not
already have given any notice to the Borrowers under Section 6.1, the Lead Agent
shall give notice to the Borrowers under Section 6.1 promptly upon being
requested to do so by the Required Banks and shall thereupon notify all the
Banks thereof.
SECTION 6.4. Actions in Respect of Letters of Credit. (a) If,
at any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then,
upon the occurrence and during the continuation thereof, the Lead Agent may,
whether in addition to the taking by the Lead Agent of any of the actions
described in this Article or otherwise, make a demand upon the Borrowers to, and
forthwith upon such demand (but in any event within ten (10) days after such
demand), the Borrowers and/or CarrAmerica LP shall, pay to the Lead Agent, on
behalf of the Banks, in same day funds at the Lead Agent's office designated in
such demand, for deposit in a special cash collateral account (the "Letter of
Credit Collateral Account") to be maintained in the name of the Lead Agent (on
behalf of the Banks) and under its sole dominion and control at such place as
shall be designated by the Lead Agent, an amount equal to the amount of the
Letter of Credit Usage under the Letters of Credit. Interest shall accrue on the
Letter of Credit Collateral Account at a rate equal to the rate on overnight
funds.
(b) The Borrowers and CarrAmerica LP hereby pledge, assign and
grant to the Lead Agent, as administrative agent for its benefit and the ratable
benefit of the Banks a lien on and a security interest in, the following
collateral (the "Letter of Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash
deposited therein and all certificates and instruments, if any,
from time to time representing or evidencing the Letter of Credit
Collateral Account;
(ii) all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or otherwise
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possessed by the Lead Agent for or on behalf of either Borrower
or CarrAmerica LP in substitution for or in respect of any or all
of the then existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the
then existing Letter of Credit Collateral; and
(iv) to the extent not covered by the above clauses, all
proceeds of any or all of the foregoing Letter of Credit
Collateral.
The lien and security interest granted hereby secures the payment of all
obligations of the Borrowers and CarrAmerica LP now or hereafter existing
hereunder and under any other Loan Document.
(c) The Borrowers and CarrAmerica LP hereby authorize the Lead
Agent for the ratable benefit of the Banks to apply, from time to time after
funds are deposited in the Letter of Credit Collateral Account, funds then held
in the Letter of Credit Collateral Account to the payment of any amounts, in
such order as the Lead Agent may elect, as shall have become due and payable by
the Borrowers and CarrAmerica LP to the Banks in respect of the Letters of
Credit.
(d) Neither Borrower, CarrAmerica LP nor any Person claiming
or acting on behalf of or through either Borrower or CarrAmerica LP shall have
any right to withdraw any of the funds held in the Letter of Credit Collateral
Account, except as provided in Section 6.4(h) hereof.
(e) Each Borrower and CarrAmerica LP agrees that it will not
(i) sell or otherwise dispose of any interest in the Letter of Credit Collateral
or (ii) create or permit to exist any lien, security interest or other charge or
encumbrance upon or with respect to any of the Letter of Credit Collateral,
except for the security interest created by this Section 6.4.
(f) If any Event of Default shall have occurred and be
continuing:
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(i) The Lead Agent may, in its sole discretion, without
notice to the Borrowers or CarrAmerica LP except as required by
law and at any time from time to time, charge, set off or
otherwise apply all or any part of first, (x) amounts previously
drawn on any Letter of Credit that have not been reimbursed by
the Borrowers or CarrAmerica LP and (y) any Letter of Credit
Usage described in clause (ii) of the definition thereof that are
then due and payable and second, any other unpaid Obligations
then due and payable against the Letter of Credit Collateral
Account or any part thereof, in such order as the Lead Agent
shall elect. The rights of the Lead Agent under this Section 6.4
are in addition to any rights and remedies which any Bank may
have.
(ii) The Lead Agent may also exercise, in its sole
discretion, in respect of the Letter of Credit Collateral
Account, in addition to the other rights and remedies provided
herein or otherwise available to it, all rights and remedies of a
secured party upon default under the Uniform Commercial Code in
effect in the State of New York at that time.
(g) The Lead Agent shall be deemed to have exercised resonable
care in the custody and preservation of the Letter of Credit Collateral if the
Letter of Credit Collateral is accorded treatment substantially equal to that
which the Lead Agent accords its own property, it being understood that,
assuming such treatment, the Lead Agent shall not have any responsibility or
liability with respect thereto.
(h) At such time as all Events of Default have been cured or
waived in writing, all amounts remaining in the Letter of Credit Collateral
Account shall be promptly returned to the Borrowers. Absent such cure or written
waiver, any surplus of the funds held in the Letter of Credit Collateral Account
and remaining after payment in full of all of the Obligations of the Borrowers
and CarrAmerica LP hereunder and under any other Loan Document after the
Maturity Date shall be paid to the Borrowers or to whomsoever may be lawfully
entitled to receive such surplus.
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ARTICLE VII
THE LEAD AGENT
SECTION 7.1. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Lead Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to the Lead Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
SECTION 7.2. Lead Agent and Affiliates. ▇▇▇▇▇▇ shall have the
same rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Lead Agent, and
▇▇▇▇▇▇ and its affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrowers and/or CarrAmerica LP or any
subsidiary or affiliate of the Borrowers or CarrAmerica LP as if it were not the
Lead Agent hereunder, and the term "Bank" and "Banks" shall include ▇▇▇▇▇▇ in
its individual capacity.
SECTION 7.3. Action by Lead Agent. The obligations of the Lead
Agent hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Lead Agent shall not be required to take any
action with respect to any Default, except as expressly provided in Article VI.
SECTION 7.4. Consultation with Experts. The Lead Agent may
consult with legal counsel (who may be counsel for the Borrowers or CarrAmerica
LP), independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Lead Agent. Neither the Lead Agent
nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required Banks
or, where required by the terms of this Agreement, all of the Banks, or (ii) in
the absence of its own gross negligence or willful misconduct. Neither the Lead
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
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covenants or agreements of the Borrowers or CarrAmerica LP; (iii) the
satisfaction of any condition specified in Article III, except receipt of items
required to be delivered to the Lead Agent; or (iv) the validity, effectiveness
or genuineness of this Agreement, the other Loan Documents or any other
instrument or writing furnished in connection herewith. The Lead Agent shall not
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it in good faith to be genuine or to be signed by the proper party
or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Lead Agent, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers or CarrAmerica LP) against any cost, expense
(including counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross negligence or
willful misconduct) that such indemnitees may suffer or incur in connection with
this Agreement, the other Loan Documents or any action taken or omitted by such
indemnitees hereunder.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Lead Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the Lead
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 7.8. Successor Lead Agent. The Lead Agent may resign
at any time by giving notice thereof to the Banks and the Borrowers. Upon any
such resignation or the removal of the Lead Agent in accordance with Section
7.11, the Required Banks shall have the right to appoint a successor Lead Agent.
If no successor Lead Agent shall have been so appointed by the Required Banks,
and shall have accepted such appointment, within 30 days after the retiring Lead
Agent gives notice of resignation, then the retiring Lead Agent may, on behalf
of the Banks, appoint a successor Lead Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of its appointment as the Lead Agent hereunder
by a successor Lead Agent, such successor Lead Agent shall thereupon succeed to
and become vested with all the rights and duties of the retiring Lead Agent, and
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the retiring Lead Agent shall be discharged from its duties and obligations
hereunder first accruing or arising after the effective date of such retirement.
After any retiring Lead Agent's resignation hereunder as Lead Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Lead Agent.
SECTION 7.9. Lead Agent's Fee. The Borrowers shall pay to the
Lead Agent for its own account fees in the amounts and at the times previously
agreed upon between the Borrowers and the Lead Agent.
SECTION 7.10. Copies of Notices. Lead Agent shall deliver to
each Bank a copy of any notice sent to either Borrower or CarrAmerica LP by Lead
Agent in connection with the performance of its duties as Lead Agent hereunder.
SECTION 7.11. Removal of Lead Agent. If the Lead Agent shall
breach any of its material obligations under this Agreement, then, upon the
unanimous consent of all the Banks (other than the Lead Agent), the Lead Agent
may be removed as Lead Agent hereunder. Upon any such removal of the Lead Agent
in accordance with this Section 7.11, the Required Banks shall have the right to
appoint a successor Lead Agent in accordance with Section 7.8.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing or Money Market LIBOR Borrowing:
(a) the Lead Agent is advised by the Reference Bank that deposits in
dollars (in the applicable amounts) are not being offered to the Reference Bank
in the relevant market for such Interest Period, or
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(b) Banks having 50% or more of the aggregate amount of the Commitments
advise the Lead Agent that the Adjusted London Interbank Offered Rate as
determined by the Lead Agent will not adequately and fairly reflect the cost to
such Banks of funding their Euro-Dollar Loans for such Interest Period, the Lead
Agent shall forthwith give notice thereof to the Borrowers and the Banks,
whereupon until the Lead Agent notifies the Borrowers that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make Euro-Dollar Loans shall be suspended. Unless the applicable Borrower
notifies the Lead Agent at least two Domestic Business Days before the date of
any Euro-Dollar Borrowing or Money Market LIBOR Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
(i) if such Borrowing is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base Rate for such day.
SECTION 8.2. Illagality. If, after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
existing applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans or Money Market LIBOR Loans or to participate in any Letter of
Credit issued by the Fronting Bank or, with respect to the Fronting Bank, to
issue any Letters of Credit, and such Bank shall so notify the Lead Agent, the
Lead Agent shall forthwith give notice thereof to the other Banks and the
Borrowers, whereupon until such Bank notifies the Borrowers and the Lead Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans or Money Market LIBOR Loans or
to participate in any Letter of Credit issued by the Fronting Bank or, with
respect to the Fronting Bank, to issue any Letters of Credit, shall be
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suspended. With respect to Euro-Dollar Loans or Money Market LIBOR Loans, before
giving any notice to the Lead Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans or Money Market LIBOR Loans (as the case may be) to maturity and shall so
specify in such notice, the Borrowers and/or CarrAmerica LP shall immediately
prepay in full the then outstanding principal amount of each such Euro-Dollar
Loan or Money Market LIBOR Loan, together with accrued interest thereon.
Concurrently with prepaying each such Euro-Dollar Loan, the Borrowers shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans or Money Market LIBOR Loan of the other Banks), and such Bank
shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or (y) the date of the
applicable Money Market Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System (but excluding with respect to any
Euro-Dollar Loan any such requirement reflected in an applicable Euro-Dollar
Reserve Percentage)), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or shall impose on any
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Bank (or its Applicable Lending Office) or on the London interbank market any
other condition affecting its Euro-Dollar Loans or Money Market LIBOR Loans, its
Note, or its obligation to make Euro-Dollar Loans, and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any such Loans, or to reduce the amount of any
sum received or receivable by such Bank (or its Applicable Lending Office) under
this Agreement or under its Note with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Lead Agent), which demand shall be accompanied by a certificate
showing, in reasonable detail, the calculation of such amount or amounts, the
Borrowers and/or CarrAmerica LP shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Lead Agent), which demand shall be
accompanied by a certificate showing, in reasonable detail, the calculation of
such amount or amounts, the Borrowers and/or CarrAmerica LP shall pay to such
Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction.
(c) Each Bank will promptly notify the Borrowers and
CarrAmerica LP and the Lead Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Bank to compensation
pursuant to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
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under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
SECTION 8.4. Taxes
(a) Any and all payments by the Borrowers or CarrAmerica LP to
or for the account of any Bank or the Lead Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Lead Agent, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Bank or
the Lead Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Bank, taxes imposed on its income, and
franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof (and, if
different from the jurisdiction of such Bank's Applicable Lending Office, the
jurisdiction of the domicile of its Loans either established by the Bank
pursuant to Section 9.12 or determined by the applicable taxing authorities)(all
such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrowers and/or CarrAmerica LP shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Note or Letter of
Credit or participation therein to any Bank or the Lead Agent, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.4) such Bank, the Fronting Bank or the Lead Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers or CarrAmerica LP shall make such
deductions, (iii) the Borrowers or CarrAmerica LP shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
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with applicable law and (iv) the Borrowers or CarrAmerica LP shall furnish to
the Lead Agent, at its address referred to in Section 9.1, the original or a
certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrowers and CarrAmerica LP agree to pay
any present or future stamp or documentary taxes and any other excise or
property taxes, or charges or similar levies which arise from any payment made
hereunder or under any Note or Letter of Credit or participation therein or from
the execution or delivery of, or otherwise with respect to, this Agreement or
any Note or Letter of Credit or participation therein (hereinafter referred to
as "Other Taxes").
(c) The Borrowers and CarrAmerica LP agree to indemnify each
Bank, the Fronting Bank and the Lead Agent for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 8.4) paid by
such Bank, the Fronting Bank or the Lead Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 15 days from the date
such Bank, the Fronting Bank or the Lead Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrowers or
CarrAmerica LP (but only so long as such Bank remains lawfully able to do so),
shall provide the Borrowers or CarrAmerica LP with Internal Revenue Service form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States. If the form provided by a Bank at
the time such Bank first became a party to this Agreement or at any time
thereafter (other than solely by reason of a change in United States law or a
change in the terms of any treaty to which the United States is a party after
the date hereof) indicates a United States interest withholding tax rate in
excess of zero (or would have indicated such a withholding tax rate if such form
had been submitted and completed accurately and completely and either was not
submitted or was not completed accurately and completely), or if a Bank
otherwise is subject to United States interest withholding tax at a rate in
excess of zero at any time for any reason (other than solely by reason of a
change in United States law or regulation or a change in any treaty to which the
United States is a party after the date hereof), withholding tax at such rate
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shall be considered excluded from "Taxes" as defined in Section 8.4(a). In
addition, any amount that otherwise would be considered "Taxes" or "Other Taxes"
for purposes of this Section 8.4 shall be excluded therefrom if the Bank either
has transferred the domicile of its Loans pursuant to Section 9.12 or changed
the Applicable Lending Office with respect to such Loans and such amount would
not have been incurred had such transfer or change not been made.
(e) For any period with respect to which a Bank has failed to provide
the Borrowers or CarrAmerica LP with the appropriate form pursuant to Section
8.4(d) (unless such failure is due to a change in treaty, law or regulation
occurring subsequent to the date on which a form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section
8.4(a) with respect to Taxes imposed by the United States; provided, however,
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrowers and CarrAmerica LP shall take such steps
as such Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrowers or CarrAmerica LP are required to pay additional
amounts to or for the account of any Bank pursuant to this Section 8.4, then
such Bank will change the jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the judgment of such Bank, is not otherwise disadvantageous to
such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans
has been suspended pursuant to Sections 8.1 or 8.2 or (ii) any Bank has demanded
compensation under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and
the Borrowers shall, by at least five Euro-Dollar Business Days' prior notice to
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such Bank through the Lead Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such Bank notifies the
Borrowers that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans (on
which interest and principal shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay
such Euro-Dollar Loans shall be applied to repay its Base Rate
Loans instead.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrowers, CarrAmerica LP or the Lead Agent, at
its address or telecopy number set forth on the signature pages hereof, together
with copies thereof, in the case of the Borrowers or CarrAmerica LP, to ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: J.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., Esq., Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇,
and in the case of the Lead Agent, to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.,
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, (y) in the case of any
Bank, at its address or telecopy number set forth on the signature pages hereof
or in its Administrative Questionnaire or (z) in the case of any party, such
other address or telecopy number as such party may hereafter specify for the
purpose by notice to the Lead Agent, the Banks, the Borrowers and CarrAmerica
LP. Each such notice, request or other communication shall be effective (i) if
given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
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addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Lead Agent
under Article II or Article VIII shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Lead Agent
or any Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification
(a) The Borrowers and CarrAmerica LP shall pay (i) all
reasonable out-of-pocket expenses of the Lead Agent (including, without
limitation, reasonable fees and disbursements of special counsel Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, local counsel for the Lead Agent, and travel,
environmental and engineering expenses), in connection with the preparation and
administration of this Agreement, the Loan Documents and the documents and
instruments referred to therein, the syndication of the Loans, any waiver or
consent hereunder or any amendment or modification hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Lead Agent and each Bank, including,
without limitation, reasonable fees and disbursements of counsel for the Lead
Agent, in connection with the enforcement of the Loan Documents and the
instruments referred to therein and such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrowers and CarrAmerica LP agree to indemnify the Lead Agent
and each Bank, their respective affiliates and the respective directors,
officers, agents and employees of the foregoing (each an "Indemnitee") and hold
each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto)
that may at any time (including, without limitation, at any time following the
payment of the Obligations) be imposed on, asserted against or incurred by any
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Indemnitee as a result of, or arising out of, or in any way related to or by
reason of, (i) any of the transactions contemplated by the Loan Documents or the
execution, delivery or performance of any Loan Document, (ii) any violation by
the Borrowers, CarrAmerica LP or the Environmental Affiliates of any applicable
Environmental Law, (iii) any Environmental Claim arising out of the management,
use, control, ownership or operation of property or assets by the Borrowers,
CarrAmerica LP or any of the Environmental Affiliates, including, without
limitation, all on-site and off-site activities involving Materials of
Environmental Concern, (iv) the breach of any environmental representation or
warranty set forth herein, (v) the grant to the Lead Agent and the Banks of any
Lien in any property or assets of the Borrowers or CarrAmerica LP or any stock
or other equity interest in the Borrowers or CarrAmerica LP, and (vi) the
exercise by the Lead Agent and the Banks of their rights and remedies
(including, without limitation, foreclosure) under any agreements creating any
such Lien (but excluding, as to any Indemnitee, any such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements incurred solely by reason of (i) the gross negligence or
willful misconduct of such Indemnitee as finally determined by a court of
competent jurisdiction and (ii) any investigative, administrative or judicial
proceeding imposed or asserted against any Indemnitee by any bank regulatory
agency or by any equity holder of such Indemnitee). ▇▇▇▇ and CarrAmerica LP
shall be jointly and severally liable for all Obligations arising hereunder in
connection with the Tranche A Loans and ▇▇▇▇ and ▇▇▇▇ ▇▇ shall be jointly and
severally liable for all Obligations arising hereunder in connection with the
Tranche B Loans. Notwithstanding the foregoing, ▇▇▇▇ ▇▇ shall not be liable for
any Borrowings made by ▇▇▇▇ pursuant to the terms hereof. The Borrowers' and
CarrAmerica LP's obligations under this Section shall survive the termination of
this Agreement and the payment of the Obligations.
(c) The Borrowers and CarrAmerica LP shall pay, and hold the Lead Agent
and each of the Banks harmless from and against, any and all present and future
U.S. stamp, recording, transfer and other similar foreclosure related taxes with
respect to the foregoing matters and hold the Lead Agent and each Bank harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such Bank) to pay
such taxes.
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SECTION 9.4. Sharing of Set-Offs. In addition to any rights
now or hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrowers, CarrAmerica LP or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), other than deposits
held for the benefit of third parties, and any other indebtedness at any time
held or owing by such Bank (including, without limitation, by branches and
agencies of such Bank wherever located) to or for the credit or the account of
the Borrowers or CarrAmerica LP against and on account of the Obligations of the
Borrowers or CarrAmerica LP then due and payable to such Bank under this
Agreement or under any of the other Loan Documents, including, without
limitation, all interests in Obligations purchased by such Bank. Each Bank
agrees that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Note held by it or Letter of Credit
participated in by it, or, in the case of the Fronting Bank, Letter of Credit
issued by it, which is greater than the proportion received by any other Bank or
Letter of Credit issued or participated in by such other Bank, in respect of the
aggregate amount of principal and interest due with respect to any Note held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other Banks or Letter of
Credit issued or participated in by such other Bank, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks or Letter of Credit issued
or participated in by such other Banks shall be shared by the Banks pro rata;
provided that nothing in this Section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrowers
or CarrAmerica LP other than their indebtedness under the Notes or the Letters
of Credit. The Borrowers and CarrAmerica LP agree, to the fullest extent they
may effectively do so under applicable law, that any holder of a participation
in a Note or Letter of Credit, whether or not acquired pursuant to the foregoing
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arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrowers or CarrAmerica LP in the amount of such
participation. Notwithstanding the foregoing, any Bank shall not exercise any
right of set-off or counterclaim or any similar right it may have against any
other indebtedness at any time held or owing by such Bank (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of ▇▇▇▇ ▇▇ against and on account of any Obligations
of ▇▇▇▇ (whether or not then due and payable) or to apply the amount subject to
such exercise to the payment of indebtedness or other Obligations of ▇▇▇▇.
SECTION 9.5. Amendments and Waivers. Any provision of this
Agreement, the Notes, the Letters of Credit or other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Borrowers and the Required Banks (and, if the rights or duties of
the Lead Agent are affected thereby, by the Lead Agent); provided that no such
amendment or waiver shall, unless signed by all the Banks, (i) increase or
decrease the Commitment of any Bank (except for a ratable decrease in the
Commitments of all Banks) or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any fees specified
herein, including, without limitation, the waiver of any Default or Event of
Default in the payment of interest, principal or fees hereunder if such waiver
would result in a permanent reduction in the amount or change in the timing of
the payment of interest, principal or fees payable hereunder by Borrowers or
CarrAmerica LP, unless the Borrowers or CarrAmerica LP have cured such Default
or Event of Default and paid all amounts, including any default interest, due
hereunder at the time a request for consent is made by Lead Agent to the Banks
to the waiver of any Default or Event of Default in the payment of interest,
principal or fees hereunder, in which event only the consent of the Required
Banks to the waiver of such Default or Event of Default shall be required, (iii)
postpone the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder or for any reduction or termination of any Commitment,
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(iv) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks, which shall be required
for the Banks or any of them to take any action under this Section or any other
provision of this Agreement, or (v) amend the provisions of this Section 9.5.
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in
writing and signed by the Designating Lender on behalf of its Designated Lender
affected thereby, (a) subject such Designated Lender to any additional
obligations, (b) reduce the principal of, interest on, or other amounts due with
respect to, the Designated Lender Note made payable to such Designated Lender,
or (c) postpone any date fixed for any payment of principal of, or interest on,
or other amounts due with respect to the Designated Lender Note made payable to
the Designated Lender.
SECTION 9.6. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrowers may not assign or otherwise transfer any of
their rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by a Bank
of a participating interest to a Participant, whether or not upon notice to the
Borrowers, CarrAmerica LP and the Lead Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, and the Borrowers, CarrAmerica
LP and the Lead Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement. Any
agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrowers and CarrAmerica LP hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii), (iii) or (iv) of Section
9.5 without the consent of the Participant. The Borrowers and CarrAmerica LP
agree that each Participant shall, to the extent provided in its participation
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agreement, be entitled to the benefits of Article VIII with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or
other institutions (each an "Assignee") all, or a proportionate part of all, of
its rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially the form of Exhibit C
attached hereto executed by such Assignee and such transferor Bank, with (and
subject to) the subscribed consent of the Lead Agent and, provided no Event of
Default shall have occurred and be continuing, the Borrowers, which consent
shall not be unreasonably withheld or delayed. Upon execution and delivery of
such instrument and payment by such Assignee to such transferor Bank of an
amount equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Lead Agent, the
Borrowers and CarrAmerica LP, if applicable, shall make appropriate arrangements
so that, if required, a new Note or Notes are issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Lead
Agent an administrative fee for processing such assignment in the amount of
$2,500. If the Assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall deliver to the Borrowers and the Lead
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.4.
(d) Any Bank (each, a "Designating Lender") may at any time
designate one Designated Lender to fund Money Market Loans on behalf of such
Designating Lender subject to the terms of this Section 9.6(d) and the
provisions in Section 9.6(b) and (c) shall not apply to such designation. No
106
Bank may designate more than one (1) Designated Lender at a time. The parties to
each such designation shall execute and deliver to the Lead Agent for its
acceptance a Designation Agreement in the form of Exhibit G hereto. Upon such
receipt of an appropriately completed Designation Agreement executed by a
Designating Lender and a designee representing that it is a Designated Lender,
the Lead Agent will accept such Designation Agreement and will give prompt
notice thereof to the Borrowers and CarrAmerica LP, whereupon, (i) the Borrower
shall execute and deliver to the Designating Bank a Designated Lender Note
payable to the order of the Designated Lender, (ii) from and after the effective
date specified in the Designation Agreement, the Designated Lender shall become
a party to this Agreement with a right (subject to the provisions of Section
2.3(d)) to make Money Market Loans on behalf of its Designating Lender pursuant
to Section 2.3 after the Borrower has accepted a Money Market Loan (or portion
thereof) of the Designating Lender, and (iii) the Designated Lender shall not be
required to make payments with respect to any obligations in this Agreement
except to the extent of excess cash flow of such Designated Lender which is not
otherwise required to repay obligations of such Designated Lender which are then
due and payable; provided, however, that regardless of such designation and
assumption by the Designated Lender, the Designating Lender shall be and remain
obligated to the Borrower, the Co-Agents and the Banks for each and every of the
obligations of the Designating Lender and its related Designated Lender with
respect to this Agreement, including, without limitation, any indemnification
obligations under Section 7.6 hereof and any sums otherwise payable to the
Borrower by the Designated Lender. Each Designating Lender shall serve as the
administrative agent of the Designated Lender and shall on behalf of, and to the
exclusion of, the Designated Lender: (i) receive any and all payments made for
the benefit of the Designated Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating
to this Agreement and the other Loan Documents. Any such notice, communication,
vote, approval, waiver, consent or amendment shall be signed by the Designating
Lender as administrative agent for the Designated Lender and shall not be signed
by the Designated Lender on its own behalf and shall be binding upon the
Designated Lender to the same extent as if signed by the Designated Lender on
its own behalf. The Borrower, the Lead Agent, the Co-Agents and the Banks may
107
rely thereon without any requirement that the Designated Lender sign or
acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder or under any other Loan Document, other than
assignments to the Designating Lender which originally designated such
Designated Lender or otherwise in accordance with the provisions of Section 9.6
(b) and (c).
(e) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note and the Letters of Credit participated
in by such Bank (as a Fronting Bank) or, in the case of the Fronting Bank,
issued by it, to a Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(f) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.3 or 8.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrowers' prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.7. Governing Law; Submission to Jurisdiction
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this
Agreement or any other Loan Document and any action for enforcement of any
judgment in respect thereof may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
and, by execution and delivery of this Agreement, each Borrower and CarrAmerica
LP hereby accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
108
appellate courts from any thereof. Each Borrower and CarrAmerica LP irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the hand delivery, or mailing of copies thereof
by registered or certified mail, postage prepaid, to the applicable Borrower or
CarrAmerica LP at its address set forth below. Each Borrower and CarrAmerica LP
hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any other Loan Document brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Lead Agent, any Bank or any holder of a
Note to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrowers or CarrAmerica LP in any
other jurisdiction.
SECTION 9.8. Marshalling; Recapture. Neither the Lead Agent
nor any Bank shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in favor of
the Borrowers, CarrAmerica LP or any other party or against or in payment of any
or all of the Obligations. To the extent any Bank receives any payment by or on
behalf of the Borrowers or CarrAmerica LP, which payment or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to either Borrower or CarrAmerica LP or its estate,
trustee, receiver, custodian or any other party under any bankruptcy law, state
or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the Obligation or part thereof which has been paid,
reduced or satisfied by the amount so repaid shall be reinstated by the amount
so repaid and shall be included within the liabilities of the Borrowers and
CarrAmerica LP to such Bank as of the date such initial payment, reduction or
satisfaction occurred.
SECTION 9.9. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
109
hereof. This Agreement shall become effective upon receipt by the Lead Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Lead Agent in form satisfactory to it of telegraphic, telex or other
written confirmation from such party of execution of a counterpart hereof by
such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS,
CARRAMERICA LP, THE LEAD AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.11. Survival. All indemnities set forth herein shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
Section 9.12. Domicile of Loans. Subject to the provisions of
Article VIII, each Bank may transfer and carry its Loans at, to or for the
account of any domestic or foreign branch office, subsidiary or affiliate of
such Bank.
SECTION 9.13. Limitation of Liability. (a) No claim may be
made by the Borrowers, CarrAmerica LP or any other Person against the Lead Agent
or any Bank or the affiliates, directors, officers, employees, attorneys or
agent of any of them for any consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement or by the other Loan
Documents, or any act, omission or event occurring in connection therewith; and
each Borrower and CarrAmerica LP hereby waives, releases and agrees not to ▇▇▇
upon any claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor.
(b) The Lead Agent or any Bank may look to all the assets of
the Borrowers and CarrAmerica LP in seeking to enforce the Borrowers' and
CarrAmerica LP's liability and obligations hereunder, and the lien of any
judgment against the Borrowers and CarrAmerica LP and any proceeding instituted
on, under or in connection with any Note or any of the other Loan Documents
shall extend to all property now or hereafter owned by the Borrowers and
CarrAmerica LP, except as set forth in Sections 6.2 and 9.3.
110
SECTION 9.14. Confidentiality.
Prior to the occurrence and continuance of an Event of Default
and except in connection with the sale or assignment or potential sale or
assignment of any Bank's Commitment or portion of its Commitment pursuant to
Section 9.6, each Bank agrees that it will use reasonable efforts, consistent
with its customary policies for maintaining information as confidential, not to
disclose without the prior consent of the Borrowers (other than to its
subsidiaries, directors, agents, employees, auditors, counsel or other
professional consultants, provided that each such recipient shall either agree
to be bound by the terms of this Section 9.14 or is otherwise bound to keep such
information confidential on a similar basis pursuant to professional ethical
obligations) any information with respect to the Borrowers, CarrAmerica LP, any
Subsidiary thereof or any of their assets or properties which is furnished
pursuant to this Agreement or any Loan Documents and which is designated as
confidential, provided that any Bank may disclose any such information (a) that
has become generally available to the public (other than as a consequence of any
Bank's breach of this Section 9.14), (b) as may be required or appropriate in
any report, statement or testimony submitted to any local, state or federal
regulatory body having or claiming to have jurisdiction over such Bank, any
nationally recognized rating agency or similar organization, (c) as may be
required or appropriate in response to any summons or subpoena or in connection
with any litigation, or (d) in order to comply with any applicable law, order,
regulation or ruling; provided, further that in the case of the foregoing
clauses (b), (c) and (d), such Bank shall use reasonable efforts to give ▇▇▇▇
prior notice of any such disclosure.
Section 9.15. Co-Agents. Bank of America National Trust and
Savings Association (successor by merger to Bank of America Illinois),
Commerzbank Aktiengesellschaft, New York Branch, Nationsbank, N.A. and ▇▇▇▇▇
Fargo Realty Advisors Funding Incorporated, each as Bank and as Co-Agent for the
Banks hereunder (collectively, the "Co-Agents") shall have no other rights,
obligations and liabilities under this Agreement except as any other Bank
hereunder. Each Bank shall, ratably in accordance with its Commitment, indemnify
the Co-Agents, their affiliates and their respective directors, officers, agents
and employees (to the extent not reimbursed by the Borrowers or CarrAmerica LP)
against any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such indemnitees may suffer or
incur but solely in connection with any such claim that may result pursuant to
the Co-Agents acting as Co-Agents under this Agreement.
Section 9.16. No Bankruptcy Proceedings. Each of the Borrower,
the Banks, the Lead Agent, and the Co-Agents hereby agrees that it will not
institute against any Designated Lender or join any other Person in instituting
against any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, until the later to occur of (i) one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Lender and (ii) the Maturity Date.
111
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CARRAMERICA REALTY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy number: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇ REALTY, L.P.
By: CarrAmerica Realty
Corporation, General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy number: (▇▇▇)▇▇▇-▇▇▇▇
CARRAMERICA REALTY, L.P.
By: CarrAmerica Realty GP
Holdings, Inc.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy number: (▇▇▇)▇▇▇-▇▇▇▇
Commitments
$50,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Vice President
112
$45,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
$45,000,000 COMMERZBANK AKTIENGESELLSCHAFT, NEW
YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
$45,000,000 NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
$45,000,000 ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/
--------------------------------
Name:
Title:
$37,500,000 BAYERISCHE HYPOTHEKEN -UND WECHSEL-
BANK AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇
Title: Assistant Treasurer
113
$37,500,000 PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Trzybiwski
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Trzybiwski
Title: Vice President
$30,000,000 WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
$25,000,000 BANK ONE, ARIZONA, NA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
$25,000,000 CORESTATES BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
$25,000,000 THE SAKURA BANK, LIMITED
NEW YORK BRANCH
By: /s/ Tamihiro Kawauchi
--------------------------------
Name: Tamihiro Kawauchi
Title: Senior Vice President &
Group Head
Real Estate Project Finance Group
$25,000,000 SOCIETE GENERALE, A FRENCH BANKING
CORPORATION, ACTING THROUGH ITS
SOUTHWEST AGENCY
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
114
$15,000,000 KREDIETBANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Total Commitments
$450,000,000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Bank of America National Trust
and Savings Association
Commercial Real Estate
Services Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Vice President
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
115
Domestic and Euro-Currency
Lending Office:
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇-
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/1872
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH, as Co-Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
NATIONSBANK, N.A., as Co-Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Co-Agent
By: /s/
--------------------------------
Name:
Title:
116
SCHEDULE 4.28
Ownership of Property
117
EXHIBIT A-1
TRANCHE A NOTE
New York, New York
, 1998
For value received, CarrAmerica Realty Corporation, a Maryland
corporation (the "Borrower") and CarrAmerica Realty L.P., a Delaware limited
partnership ("CarrAmerica LP"), jointly and severally promise to pay to the
order of (the "Bank"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower or CarrAmerica LP pursuant to the Credit Agreement referred to below on
the Maturity Date. The Borrower and CarrAmerica LP jointly and severally promise
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such payments
of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty
Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower and
CarrAmerica LP hereunder or under the Credit Agreement.
This Note is one of the Tranche A Notes referred to in the
Third Amended and Restated Revolving Credit Agreement, dated as of March ,
1998, among the Borrower, CarrAmerica LP, ▇▇▇▇ Realty, L.P., the Banks parties
thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead Agent, Bank of
America National Trust and Savings Association, Commerzbank Aktiengesellschaft,
New York Branch, Nationsbank, N.A., and ▇▇▇▇▇ Fargo Bank, National Association,
each as Bank and as Co-Agent for the Banks (as the same may be amended from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
A-1
CARRAMERICA REALTY CORPORATION
By:
--------------------------------
Name:
Title:
CARRAMERICA REALTY L.P.
By:
--------------------------------
Name:
Title:
A-2
Tranche A Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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A-3
EXHIBIT ▇-▇
▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
, ▇▇▇▇
For value received, ▇▇▇▇ Realty, L.P., a Delaware limited
partnership (the "Borrower") and CarrAmerica Realty Corporation, a Maryland
corporation ("▇▇▇▇"), jointly and severally promise to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Loan made by the Bank to the Borrower or ▇▇▇▇
pursuant to the Credit Agreement referred to below on the Maturity Date. The
Borrower and ▇▇▇▇ jointly and severally promise to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of ▇▇▇▇▇▇ Guaranty Trust Company of
New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower and
▇▇▇▇ hereunder or under the Credit Agreement.
This Note is one of the Tranche B Notes referred to in the
Third Amended and Restated Revolving Credit Agreement, dated as of March ,
1998, among the Borrower, ▇▇▇▇, CarrAmerica Realty, L.P., the Banks parties
thereto, ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead Agent, Bank of
America National Trust and Savings Association, Commerzbank Aktiengesellschaft,
New York Branch, Nationsbank, N.A., and ▇▇▇▇▇ Fargo Bank, National Association,
each as Bank and as Co-Agent for the Banks (as the same may be amended from time
to time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
A-4
▇▇▇▇ REALTY, L.P.
By:
--------------------------------
Name:
Title:
CARRAMERICA REALTY
CORPORATION
By:
--------------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇ Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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▇-▇
▇▇▇▇▇▇▇ ▇-▇
TRANCHE A DESIGNATED LENDER NOTE
New York, New York
, 1998
For value received, CarrAmerica Realty Corporation, a Maryland
corporation (the "Borrower") and CarrAmerica Realty L.P., a Delaware limited
partnership ("CarrAmerica LP"), jointly and severally promise to pay to the
order of (the "Bank"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower or CarrAmerica LP pursuant to the Credit Agreement referred to below on
the Maturity Date. The Borrower and CarrAmerica LP jointly and severally promise
to pay interest on the unpaid principal amount of each such Loan on the dates
and at the rate or rates provided for in the Credit Agreement. All such payments
of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty
Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower and
CarrAmerica LP hereunder or under the Credit Agreement.
This Note is one of the Designated Lender Notes referred to
in, and is delivered pursuant to and subject to all of the terms of, the Third
Amended and Restated Revolving Credit Agreement dated as of March , 1998 among
the Borrower, ▇▇▇▇, CarrAmerica LP, ▇▇▇▇ Realty L.P., the Banks parties thereto,
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead Agent, Bank of America
National Trust and Savings Association, Commerzbank Aktiengesellschaft, New York
Branch, Nationsbank, N.A., and ▇▇▇▇▇ Fargo Bank, National Association, each as
Bank and as Co-Agent for the Banks (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
A-7
CARRAMERICA REALTY CORPORATION
By:
--------------------------------
Name:
Title:
CARRAMERICA REALTY L.P.
By:
--------------------------------
Name:
Title:
A-8
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
--------------------------------------------------------------------------------
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▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇ ▇ DESIGNATED LENDER NOTE
New York, New York
, 1998
For value received, ▇▇▇▇ Realty, L.P., a Delaware limited
partnership (the "Borrower") and CarrAmerica Realty Corporation, a Maryland
corporation ("▇▇▇▇"), jointly and severally promise to pay to the order of
(the "Bank"), for the account of its Applicable Lending
Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower or ▇▇▇▇ pursuant to the Credit Agreement referred to below on the
Maturity Date. The Borrower and ▇▇▇▇ jointly and severally promise to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of ▇▇▇▇▇▇ Guaranty
Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types and
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, if the Bank so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower and
▇▇▇▇ hereunder or under the Credit Agreement.
This Note is one of the Designated Lender Notes referred to
in, and is delivered pursuant to and subject to all of the terms of, the Third
Amended and Restated Revolving Credit Agreement dated as of March , 1998 among
the Borrower, ▇▇▇▇, CarrAmerica Realty, L.P., the Banks parties thereto, ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Lead Agent, Bank of America National
Trust and Savings Association, Commerzbank Aktiengesellschaft, New York Branch,
Nationsbank, N.A., and ▇▇▇▇▇ Fargo Bank, National Association, each as Bank and
as Co-Agent for the Banks (as the same may be amended from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for provisions for
the prepayment hereof and the acceleration of the maturity hereof.
A-10
▇▇▇▇ REALTY, L.P.
By:
--------------------------------
Name:
Title:
CARRAMERICA REALTY CORPORATION
By:
--------------------------------
Name:
Title:
A-11
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ UNENCUMBERED ASSET POOL PROPERTIES
B-1
EXHIBIT B-2
▇▇▇▇ ▇▇ UNENCUMBERED ASSET POOL PROPERTIES
B-2
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
C-1
EXHIBIT D
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York (the "Lead Agent")
From: CarrAmerica Realty Corporation, ▇▇▇▇ Realty, L.P.,
and CarrAmerica Realty, L.P.
Re: Third Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of March , 1998 among CarrAmerica Realty
Corporation, ▇▇▇▇ Realty, L.P., and CarrAmerica Realty, L.P.,
▇▇▇▇▇▇ Guaranty Trust Company of New York, as Bank and Lead
Agent for the Banks, Bank of America National Trust and
Savings Association, Commerzbank Aktiengesellschaft, New York
Branch, Nationsbank, N.A. and ▇▇▇▇▇ Fargo Bank, National
Association, each as Bank and Co-Agent, and the Banks parties
thereto
We hereby give notice pursuant to Section 2.3 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount1 Interest Period2
$
Principal Amount allocated to Tranche A: $________________
Principal Amount allocated to Tranche B: $________________
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
The funding of Money Market Loans made in connection with this
Money Market Quote Request [may/may not] be made by Designated Lenders.
----------
1 Amount must be $10,000,000 or a larger multiple of $500,000.
2 Not less than one month (LIBOR Auction) or not less than 14 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest
Period.
D-2
Terms used herein have the meanings assigned to them in the
Credit Agreement.
[Borrower]
By:
--------------------------------
Name:
Title:
EXHIBIT E
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to CarrAmerica Realty Corporation, ▇▇▇▇
Realty, L.P. and CarrAmerica Realty, L.P. (the "Borrower")
Pursuant to Section 2.3 of the Third Amended and Restated
Credit Agreement dated as of March , 1998 among CarrAmerica Realty Corporation,
▇▇▇▇ Realty, L.P., and CarrAmerica Realty, L.P., ▇▇▇▇▇▇ Guaranty Trust Company
of New York, as Bank and Lead Agent for the Banks, Bank of America National
Trust and Savings Association, Commerzbank Aktiengesellschaft, New York Branch,
Nationsbank, N.A. and ▇▇▇▇▇ Fargo Bank, National Association, each as Bank and
Co-Agent, and the Banks parties thereto, we are pleased on behalf of the
Borrower and CarrAmerica LP to invite you to submit Money Market Quotes to the
Borrower and/or CarrAmerica LP for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than 10:00 A.M.
(New York City time) on [date].
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By
--------------------------------
Authorized Officer
E-1
EXHIBIT F
Form of Money Market Quote
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Lead Agent
Re: Money Market Quote to CarrAmerica Realty Corporation, ▇▇▇▇ Realty, L.P.,
and CarrAmerica Realty, L.P. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
____________________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
-------- --------- ------------ --------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions set
forth in the Third Amended and Restated Credit Agreement dated as of
March , 1998 among CarrAmerica Realty Corporation, ▇▇▇▇ Realty, L.P.,
and CarrAmerica Realty, L.P., Bank of America National Trust and
Savings Association, Commerzbank Aktiengesellschaft, New York Branch,
Nationsbank, N.A. and ▇▇▇▇▇ Fargo Bank, National Association, each as
Bank and Co-Agent, and the Banks parties thereto, and yourselves, as
Lead Agent, irrevocably obligates us to make the Money Market Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
F-1
EXHIBIT G
FORM OF DESIGNATION AGREEMENT
Dated _____________, 199___
Reference is made to that certain Third Amended and Restated
Revolving Credit Agreement dated as of March , 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among CARRAMERICA
REALTY CORPORATION, ▇▇▇▇ REALTY, L.P., and CARRAMERICA REALTY, L.P., BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Bank and Co-Agent,
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH, as Bank and Co-Agent,
NATIONSBANK, N.A., as Bank and Co-Agent, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Bank and Co-Agent, and the Banks parties thereto, and yourselves, as Lead
Agent, and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK (the "Lead Agent"), as Lead
Agent. Terms defined in the Credit Agreement are used herein with the same
meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the
"Designee"), the Lead Agent and Borrower agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make Money Market
Loans pursuant to Section 2.3 of the Credit Agreement. Any assignment by
Designor to Designee of its rights to make a Money Market Loan pursuant to such
Article III shall be effective at the time of the funding of such Money Market
Loan and not before such time.
2. Except as set forth in Section 7 below, the Designor makes
no representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements referred to
in Section 5.1 of the Credit Agreement and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Designation Agreement; (b) agrees that it will independently and
G-1
without reliance upon the Lead Agent, the Designor or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
any Loan Document; (c) confirms that it is a Designated Lender; (d) appoints and
authorizes the Lead Agent to take such action as agent on its behalf and to
exercise such powers and discretion under any Loan Document as are delegated to
the Lead Agent by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; and (e) agrees to be bound by each and every
provision of each Loan Document and further agrees that it will perform in
accordance with their terms all of the obligations which by the terms of any
Loan Document are required to be performed by it as a Bank, subject to Section
9.6(d) of the Credit Agreement.
4. The Designee hereby appoints Designor as Designee's agent
and attorney in fact, and grants to Designor an irrevocable power of attorney,
to receive payments made for the benefit of Designee under the Credit Agreement,
to deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on Designee's behalf all rights to vote
and to grant and make approvals, waivers, consents of amendments to or under the
Credit Agreement or other Loan Documents, subject to Section 9.5 of the Credit
Agreement. Any document executed by the Designor on the Designee's behalf in
connection with the Credit Agreement or other Loan Documents shall be binding on
the Designee. The Borrower, the Lead Agent and each of the Banks may rely on and
are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by
the Designor and its Designee, it will be delivered to the Lead Agent for
recording by the Lead Agent. The effective date for this Designation Agreement
(the "Effective Date") shall be the date of receipt hereof by the Lead Agent,
unless otherwise specified on the signature page thereto.
6. The Lead Agent hereby agrees that it will not institute
against any Designated Lender or join any other Person in instituting against
any Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar law,
until the later to occur of (i) one year and one day after the payment in full
of the latest maturing commercial paper note issued by such Designated Lender
and (ii) the Maturity Date.
G-2
7. The Designor unconditionally agrees to pay or reimburse the
Designee and save the Designee harmless against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Loan Documents against the Designee (except as set
forth in Section 8 below), in its capacity as such, in any way relating to or
arising out of this Agreement or any other Loan Documents or any action taken or
omitted by the Designee hereunder or thereunder, provided that the Designor
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
if the same results from the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Lead Agent, as of
the Effective Date, the Designee shall be a party to the Credit Agreement with a
right (subject to the provisions of Section 2.3(b)) to make Money Market Loans
as a Bank pursuant to Section 2.3 of the Credit Agreement and the rights and
obligations of a Bank related thereto; provided, however, that the Designee
shall not be required to make payments with respect to such obligations except
to the extent of excess cash flow of such Designee which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable. Notwithstanding the foregoing, the Designor, as administrative agent
for the Designee, shall be and remain obligated to the Borrower, the Co-Agents
and the Banks for each and every of the obligations of the Designee and its
Designor with respect to the Credit Agreement, including, without limitation,
any indemnification obligations under Section 7.6 of the Credit Agreement and
any sums otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
10. This Designation Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Designation Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.
G-3
IN WITNESS WHEREOF, the Designor and the Designee, intending
to be legally bound, have caused this Designation Agreement to be executed by
their officers thereunto duly authorized as of the date first above written.
Effective Date: ________________________, 199__
[NAME OF DESIGNOR], as Designor
By: ______________________________
Title:____________________________
[NAME OF DESIGNEE] as Designee
By:________________________________
Title: ____________________________
Applicable Lending Office
(and address for notices):
[ADDRESS]
Accepted this _____ day
of , 19
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Lead Agent
By:
Title:
G-4