1
EXHIBIT 10.28
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED JUNE 6, 1997
among
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP
and
BANKBOSTON, N.A.,
THE OTHER BANKS WHICH ARE A
PARTY TO THIS AGREEMENT
and
OTHER BANKS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
and
BANKBOSTON, N.A., AS AGENT
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION......................... -1-
Section 1.1. Definitions................................................ -1-
Section 1.2. Rules of Interpretation....................................-16-
SECTION 2. THE REVOLVING CREDIT FACILITY...................................-17-
Section 2.1. Commitment to Lend.........................................-17-
Section 2.2. Facility Fee...............................................-17-
Section 2.3. Reduction of Commitment....................................-17-
Section 2.4. Notes......................................................-18-
Section 2.5. Interest on Loans..........................................-18-
Section 2.6. Requests for Loans.........................................-18-
Section 2.7. Funds for Loans............................................-19-
Section 2.8. Intentionally Omitted......................................-20-
Section 2.9. Use of Proceeds............................................-20-
SECTION 3. REPAYMENT OF THE LOANS..........................................-21-
Section 3.1. Stated Maturity............................................-21-
Section 3.2. Mandatory Prepayments......................................-21-
Section 3.3. Optional Prepayments.......................................-21-
Section 3.4. Partial Prepayments........................................-22-
Section 3.5. Effect of Prepayments......................................-22-
Section 3.6. Proceeds from Debt or Equity Offering......................-22-
SECTION 4. CERTAIN GENERAL PROVISIONS......................................-22-
Section 4.1. Conversion Options.........................................-22-
Section 4.2. Closing Fee................................................-23-
Section 4.3. Agent's Fee................................................-23-
Section 4.4. Funds for Payments.........................................-23-
Section 4.5. Computations...............................................-24-
Section 4.6. Inability to Determine Eurodollar Rate.....................-24-
Section 4.7. Illegality.................................................-24-
Section 4.8. Additional Interest........................................-25-
Section 4.9. Additional Costs, Etc......................................-25-
Section 4.10. Capital Adequacy..........................................-26-
Section 4.11. Indemnity of Borrower.....................................-27-
Section 4.12. Interest on Overdue Amounts; Late Charge..................-27-
Section 4.13. Certificate...............................................-27-
Section 4.14. Limitation on Interest....................................-27-
SECTION 5. COLLATERAL SECURITY AND GUARANTY................................-28-
Section 5.1. Security...................................................-28-
Section 5.2. Intentionally Omitted......................................-28-
SECTION 6. REPRESENTATIONS AND WARRANTIES..................................-28-
Section 6.1. Corporate Authority, Etc...................................-28-
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Section 6.2. Governmental Approvals.....................................-29-
Section 6.3. Title to Properties; Leases................................-29-
Section 6.4. Financial Statements.......................................-30-
Section 6.5. No Material Changes........................................-30-
Section 6.6. Franchises, Patents, Copyrights, Etc.......................-30-
Section 6.7. Litigation.................................................-30-
Section 6.8. No Materially Adverse Contracts, Etc.......................-31-
Section 6.9. Compliance with Other Instruments, Laws, Etc...............-31-
Section 6.10. Tax Status................................................-31-
Section 6.11. No Event of Default.......................................-31-
Section 6.12. Holding Company and Investment Company Acts...............-32-
Section 6.13. Absence of UCC Financing Statements, Etc..................-32-
Section 6.14. Certain Transactions......................................-32-
Section 6.15. Employee Benefit Plans....................................-32-
Section 6.16. Regulations U and X.......................................-33-
Section 6.17. Environmental Compliance..................................-33-
Section 6.18. Subsidiaries..............................................-35-
Section 6.19. Loan Documents............................................-35-
Section 6.20. Property..................................................-35-
Section 6.21. Brokers...................................................-35-
Section 6.22. Partners and the Guarantor................................-35-
Section 6.23. Solvency..................................................-36-
Section 6.24. Other Debt................................................-36-
Section 6.25. Magellan Transaction......................................-36-
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER...........................-36-
Section 7.1. Punctual Payment...........................................-36-
Section 7.2. Maintenance of Office......................................-36-
Section 7.3. Records and Accounts.......................................-37-
Section 7.4. Financial Statements, Certificates and Information.........-37-
Section 7.5. Notices....................................................-39-
Section 7.6. Existence; Maintenance of Properties.......................-40-
Section 7.7. Insurance..................................................-41-
Section 7.8. Taxes......................................................-41-
Section 7.9. Inspection of Properties and Books.........................-41-
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits....-42-
Section 7.11. Further Assurances........................................-42-
Section 7.12. Ownership of Real Estate..................................-42-
Section 7.13. Investment Advisor........................................-42-
Section 7.14. Non-Competition Agreements................................-42-
Section 7.15. Business Operations.......................................-42-
Section 7.16. Intentionally Omitted.....................................-42-
Section 7.17. Limiting Agreements.......................................-42-
Section 7.18. More Restrictive Agreements...............................-43-
Section 7.19. Applicability of Covenants to Residential Corporations....-43-
Section 7.20. Distributions of Income to the Borrower...................-43-
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SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER......................-43-
Section 8.1. Restrictions on Indebtedness...............................-43-
Section 8.2. Restrictions on Liens, Etc. ...............................-45-
Section 8.3. Restrictions on Investments................................-46-
Section 8.4. Merger, Consolidation......................................-48-
Section 8.5. Sale and Leaseback.........................................-48-
Section 8.6. Compliance with Environmental Laws.........................-48-
Section 8.7. Distributions..............................................-49-
Section 8.8. Asset Sales................................................-50-
Section 8.9. Development Activity.......................................-50-
Section 8.10. Investment Opportunities..................................-51-
Section 8.11. Refinancing of Assets.....................................-51-
Section 8.12. Variable Rate Debt........................................-51-
Section 8.13. Restriction on Prepayment of Indebtedness.................-51-
SECTION 9. FINANCIAL COVENANTS OF THE BORROWER.............................-51-
Section 9.1. Liabilities to Worth Ratio.................................-51-
Section 9.2. Debt Service Coverage. ....................................-51-
Section 9.3. Intentionally Omitted......................................-51-
Section 9.4. Tangible Net Worth.........................................-51-
Section 9.5. Secured Debt to Assets Ratio...............................-51-
Section 9.6. Fixed Charge Coverage......................................-51-
Section 9.7. Total Liabilities..........................................-51-
Section 9.8. Real Estate Assets.........................................-52-
Section 9.9. Value Adjustment...........................................-52-
Section 9.10. CBHS......................................................-52-
Section 9.11. Unencumbered Operating Properties.........................-52-
SECTION 10. CLOSING CONDITIONS.............................................-53-
Section 10.1. Loan Documents............................................-53-
Section 10.2. Certified Copies of Organizational Documents..............-53-
Section 10.3. Bylaws; Resolutions.......................................-53-
Section 10.4. Incumbency Certificate; Authorized Signers................-53-
Section 10.5. Opinion of Counsel........................................-53-
Section 10.6. Payment of Fees...........................................-54-
Section 10.7. Performance; No Default...................................-54-
Section 10.8. Representations and Warranties............................-54-
Section 10.9. Proceedings and Documents.................................-54-
Section 10.10. Intentionally Omitted....................................-54-
Section 10.11. Compliance Certificate...................................-54-
Section 10.12. Real Estate Spreadsheet..................................-54-
Section 10.13. Other....................................................-55-
SECTION 11. CONDITIONS TO ALL BORROWINGS...................................-55-
Section 11.1. Prior Conditions Satisfied................................-55-
Section 11.2. Representations True; No Default..........................-55-
Section 11.3. No Legal Impediment.......................................-55-
Section 11.4. Governmental Regulation...................................-55-
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Section 11.5. Proceedings and Documents.................................-55-
Section 11.6. Borrowing Documents.......................................-55-
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC...........................-56-
Section 12.1. Events of Default and Acceleration........................-56-
Section 12.2. Limitation of Cure Periods................................-59-
Section 12.3. Termination of Commitments................................-60-
Section 12.4. Remedies..................................................-60-
Section 12.5. Distribution of Proceeds..................................-60-
SECTION 13. SETOFF.........................................................-61-
SECTION 14. THE AGENT......................................................-62-
Section 14.1. Authorization.............................................-62-
Section 14.2. Employees and Agents......................................-62-
Section 14.3. No Liability..............................................-62-
Section 14.4. No Representations........................................-62-
Section 14.5. Payments..................................................-63-
Section 14.6. Holders of Notes..........................................-64-
Section 14.7. Indemnity.................................................-64-
Section 14.8. Agent as Bank.............................................-64-
Section 14.9. Resignation...............................................-64-
Section 14.10. Duties in the Case of Enforcement........................-65-
SECTION 15. EXPENSES.......................................................-65-
SECTION 16. INDEMNIFICATION................................................-66-
SECTION 17. SURVIVAL OF COVENANTS, ETC. ...................................-67-
SECTION 18. ASSIGNMENT AND PARTICIPATION...................................-67-
Section 18.1. Conditions to Assignment by Banks.........................-67-
Section 18.2. Register..................................................-69-
Section 18.3. New Notes.................................................-69-
Section 18.4. Participations............................................-69-
Section 18.5. Pledge by Bank............................................-69-
Section 18.6. No Assignment by Borrower.................................-70-
Section 18.7. Disclosure................................................-70-
SECTION 19. NOTICES........................................................-70-
SECTION 20. RELATIONSHIP...................................................-71-
SECTION 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.............-71-
SECTION 22. HEADINGS.......................................................-72-
SECTION 23. COUNTERPARTS...................................................-72-
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SECTION 24. ENTIRE AGREEMENT, ETC..........................................-72-
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.................-72-
SECTION 26. DEALINGS WITH THE BORROWER.....................................-73-
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.............................-73-
SECTION 28. SEVERABILITY...................................................-73-
SECTION 29. NO UNWRITTEN AGREEMENTS........................................-74-
SECTION 30. TIME OF THE ESSENCE............................................-74-
LIST OF EXHIBITS:
A FORM OF NOTE
B FORM OF LOAN REQUEST
C FORM OF COMPLIANCE CERTIFICATE
LIST OF SCHEDULES:
Schedule 1 Banks and Commitments
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.18 Subsidiaries of Borrower
Schedule 8.1(h) Existing Indebtedness
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made the
6th day of June, 1997, by and among CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP (the "Borrower"), a Delaware limited partnership having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, and BANKBOSTON, N.A., a national banking association, formerly known as
The First National Bank of Boston, the other Banks which are a party hereto,
and the other lending institutions which may become parties hereto pursuant to
Section 18 (the "Banks"), and BANKBOSTON, N.A., a national banking association,
formerly known as The First National Bank of Boston, as Administrative and
Syndication Agent for the Banks (the "Agent"), and BANKERS TRUST COMPANY, as
Documentation Agent for the Banks, and NATIONSBANK OF TEXAS, N.A., as
Documentation Agent for the Banks.
RECITALS.
WHEREAS, Borrower, BankBoston and Agent have entered into that certain
Revolving Credit Agreement dated June 18, 1996 (the "Original Credit
Agreement"), as amended and restated pursuant to that certain First Amended and
Restated Revolving Credit Agreement among Borrower, BankBoston and certain
other Banks and Agent dated August 14, 1996 (the "Amended Credit Agreement");
and
WHEREAS, Borrower has requested that BankBoston increase the Total
Commitment and that certain additional lending institutions be included as
Banks; and
WHEREAS, the Borrower, the Banks and the Agent desire to amend and
restate the Amended Credit Agreement in its entirety;
NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby amend and restate the
Amended Credit Agreement in its entirety as follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. Definitions. The following terms shall have the meanings
set forth in this Section l or elsewhere in the provisions of this Agreement
referred to below:
Agent. BankBoston, N.A., acting as agent for the Banks, its successors
and assigns.
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Agent's Head Office. The Agent's head office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. Long ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP or such other
counsel as may be approved by the Agent.
Agreement. This Second Amended and Restated Revolving Credit
Agreement, including the Schedules and Exhibits hereto.
Applicable Margin. On any date that (a) the lower of the Implied Ratings
issued from time to time by either of the Rating Agencies for the Borrower is
an Investment Grade Rating or (b) the Borrower has a Private Letter Rating, the
Applicable Margin for Eurodollar Rate Loans shall be one and one-fifth percent
(1.20%). In the event that the Borrower has a Private Letter Rating, or in the
event that the indebtedness with respect to which a Private Letter Rating was
obtained is satisfied, or in the event that either of the Rating Agencies
issues an Implied Rating for the Borrower that is an Investment Grade Rating,
or in the event of any change in an Implied Rating of the Borrower by either of
the Rating Agencies, or if the Borrower's Implied Rating, after having obtained
an Investment Grade Rating, shall cease at any time to be an Investment Grade
Rating by either of the Rating Agencies (but subject to the provisions within
the definition of the term "Investment Grade Rating"), such change shall effect
a change in the Applicable Margin on the first Business Day after the Rating
Notice Date. On any date that the lower of the Implied Ratings for the Borrower
is not an Investment Grade Rating, or the Borrower has not obtained an
Investment Grade Rating from either of the Rating Agencies, or the Borrower
does not have a Private Letter Rating, the Applicable Margin for Eurodollar
Rate Loans shall be one and three-eighths percent (1.375%). It is the intention
of the parties that if the Borrower shall only obtain an Investment Grade
Rating from one of the Rating Agencies without seeking an Investment Grade
Rating from the other of the Rating Agencies or a Private Letter Rating, or if
the Borrower shall obtain a Private Letter Rating without seeking an Investment
Grade Rating from either of the Rating Agencies, the Borrower shall be entitled
to the benefit of the rate reductions described above; provided that if the
Borrower shall have obtained an Investment Grade Rating from both of the Rating
Agencies, the lower of the two ratings (or the loss of the Investment Grade
Rating from one of the Rating Agencies thereafter) shall control, or in the
event that the Borrower has a Private Letter Rating and shall have obtained an
Investment Grade Rating from either or both of the Rating Agencies, the lowest
of the Implied Ratings (or the loss of the Investment Grade Rating from any of
the Rating Agencies thereafter) shall control.
Asset Value. The purchase price of Real Estate (including improvements and
related fixtures, personal property and intangibles) and ordinary related
purchase transaction costs without deduction for depreciation, or if the Real
Estate has been developed by such Person, the completed construction costs
determined in accordance with generally accepted accounting principles without
deduction for depreciation. If the Real Estate is purchased as a part of a
group
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of properties, the Asset Value shall be calculated based upon a reasonable
allocation by the Borrower of the aggregate purchase price among all Real
Estate purchased in such transaction.
Balance Sheet Date. December 31, 1996 (as adjusted for purchases
subsequent to such date and prior to the date hereof).
BankBoston. BankBoston, N.A., a national banking association, formerly
known as The First National Bank of Boston.
Banks. BankBoston, the other Banks that are a party to this Agreement and
any other Person who becomes an assignee of any rights of a Bank pursuant to
Section 18.
Base Rate. The greater of (a) the annual rate of interest announced from
time to time by BankBoston at its head office in Boston, Massachusetts as its
"base rate" or (b) one-half of one percent (0.5%) above the Federal Funds
Effective Rate (rounded upwards, if necessary, to the next one-eighth of one
percent). Any change in the rate of interest payable hereunder resulting from a
change in the Base Rate shall become effective as of the opening of business on
the day on which such change in the Base Rate becomes effective.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
Behavioral Healthcare Facilities. The "Collective Leased Properties", as
such term is defined in the Master Lease Agreement.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in Boston,
Massachusetts are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, which also is a Eurodollar Business Day.
Capitalized Lease. A lease under which a Person is the lessee or obligor,
the discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
generally accepted accounting principles; provided that if the total of such
future rental payment obligations is less than $250,000.00, then such lease
shall be treated as an expense of such Person and not as a Capitalized Lease.
Cash. At any time, the sum of the Borrower's cash, marketable securities
and other cash equivalents, including restricted cash.
CBHS. Charter Behavioral Health Systems, LLC, a Delaware limited liability
company.
CERCLA. See Section 6.17.
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Closing Date. The first date on which all of the conditions set forth in
Section 10 and Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
hereto as the amount of such Bank's Commitment to make or maintain Loans to the
Borrower, as the same may be reduced from time to time in accordance with the
terms of this Agreement.
Commitment Percentage. With respect to each Bank, the percentage set forth
on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks.
Compliance Certificate. See Section 7.4(d).
Consolidated or combined. With reference to any term defined herein, that
term as applied to the accounts of a Person and its Subsidiaries, consolidated
or combined in accordance with generally accepted accounting principles.
Consolidated Cash Flow. With respect to any period of the Borrower or
CBHS, as applicable, an amount equal to the sum of the following amounts of the
Borrower and its Subsidiaries or CBHS, as applicable: (a) the Net Income of
such Person for such period plus (b) depreciation and amortization, interest
expense, and any extraordinary or non-recurring losses deducted in calculating
such Net Income minus (c) any extraordinary or nonrecurring gains included in
calculating such Net Income, all as determined in accordance with generally
accepted accounting principles.
Consolidated Tangible Net Worth. The amount by which Consolidated Total
Assets exceeds Consolidated Total Liabilities, and less the sum of:
(a) the total book value of all assets of a Person and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as goodwill, the
purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, brand names, copyrights,
patents and licenses, and rights with respect to the foregoing; plus
(b) all amounts representing any write-up in the book value of any
assets of such Person or its Subsidiaries resulting from a revaluation
thereof subsequent to the Balance Sheet Date.
Consolidated Total Assets. All assets of a Person and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles. All real estate assets shall be valued on an
undepreciated cost basis, except as otherwise shown on the financial statements
provided pursuant to Section 6.4 or as adjusted pursuant to Section 9.9. The
assets of the Borrower
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and its Subsidiaries on the consolidated financial statements of the Borrower
and its Subsidiaries shall be adjusted to reflect the Borrower's allocable
share of such asset, for the relevant period or as of the date of
determination, taking into account (a) the relative proportion of each such
item derived from assets directly owned by the Borrower and from assets owned
by the respective Subsidiaries, and (b) the Borrower's respective ownership
interest in its Subsidiaries.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified. In the event that Borrower has an
ownership or other equity interest in any Person, which investment is not
consolidated in accordance with generally accepted accounting principles (that
is, such interest is a "minority interest"), then the liabilities of Borrower
and its Subsidiaries shall include Borrower's or its Subsidiaries' allocable
share of all indebtedness of such Person based on the Borrower's or its
Subsidiaries' respective ownership interest in such Person.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 4.1.
Debt Offering. The issuance and sale to the general public or as a private
placement by the Borrower or the Guarantor subsequent to the date of this
Agreement of any debt securities of the Borrower or Guarantor for cash or the
right to receive payment in the future.
Debt Service. For any period, the sum of all interest (including
capitalized interest) and mandatory principal payments due and payable during
such period excluding any balloon payments due upon maturity of any
indebtedness.
Default. See Section 12.1.
Distribution. With respect to Guarantor, the declaration or payment of any
dividend or distribution on or in respect of any shares of any class of capital
stock or beneficial interest of Guarantor, other than dividends or
distributions payable solely in equity securities of Guarantor; the purchase,
redemption, exchange or other retirement of any shares of any class of capital
stock or beneficial interest of Guarantor, directly or indirectly through a
Subsidiary of Guarantor or otherwise; the return of capital by Guarantor to its
shareholders as such; or any other distribution on or in respect of any shares
of any class of capital stock or beneficial interest of Guarantor. With respect
to the Borrower, the declaration or payment of any distribution of cash or cash
flow to the partners of the Borrower; the return of capital by the Borrower to
its partners; or any other distribution on or in respect of any partnership
interests in the Borrower. A Distribution shall not include the distribution of
shares in Crescent Operating, Inc. to the shareholders of Guarantor in
connection with the initial creation of Crescent Operating, Inc. as
contemplated in Crescent Operating, Inc.'s S-1 statement filed April 15, 1997.
Dollars or $. Dollars in lawful currency of the United States of America.
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Domestic Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan which is made prior to the Maturity Date is
converted or combined in accordance with Section 4.1.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.17(a).
Equity Offering. The issuance and sale to the general public or as a
private placement by the Borrower or Guarantor subsequent to the date of this
Agreement of any partnership interests or equity securities of the Borrower or
Guarantor, as applicable, for cash or the right to receive payment in the
future (it being acknowledged that an Equity Offering shall not include (a) the
issuance of limited partnership interests in the Borrower other than for cash
to a seller or partner thereof in connection with the acquisition of Real
Estate or the conversion thereof into equity securities of Guarantor, or (b)
the exercise or conversion of options to acquire equity securities of Guarantor
or the Borrower or the issuance of restricted stock under incentive
compensation plans maintained by Borrower or Guarantor for itself or its
Subsidiaries, directors, officers and employees).
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D or any successor or similar
regulation), if such liabilities were outstanding. The Eurocurrency Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in the Eurocurrency Reserve Rate.
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Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or
such other eurodollar interbank market as may be selected by the Agent and the
Banks in their sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate per annum equal to the quotient (rounded upwards to the nearest
1/16 of one percent) of (a) the rate at which the Reference Bank's Eurodollar
Lending Office is offered Dollar deposits two Eurodollar Business Days prior to
the beginning of such Interest Period in whatever interbank eurodollar market
may be selected by the Reference Bank in its sole discretion, acting in good
faith, for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of the
Eurodollar Rate Loan to which such Interest Period applies, divided by (b) a
number equal to 1.00 minus the Eurocurrency Reserve Rate.
Eurodollar Rate Loans. Loans bearing interest calculated by reference to a
Eurodollar Rate.
Event of Default. See Section 12.1.
Existing Fixed Rate Indebtedness. Collectively, (i) the long term fixed
rate debt provided to Crescent Real Estate Funding I, L.P. ("Funding I") by
Nomura Asset Capital Corporation ("Nomura") in the principal face amount of
$239,000,000 which matures on August 11, 2027, as evidenced by that certain
Promissory Note dated August 24, 1995 made by Funding I to the order of Nomura
in the principal face amount of $239,000,000 which has been assigned to LaSalle
National Bank, as Trustee under that certain Pooling and Servicing Agreement
dated October 1, 1995; (ii) the long term fixed rate debt provided to Crescent
Real Estate Funding II, L.P. ("Funding II") by Nomura in the original principal
face amount of $161,000,000, which matures on March 11, 2028, as evidenced by
that certain Promissory Note dated August 24, 1995, made by Funding II to the
order of Nomura in the principal face amount of $161,000,000, which has been
assigned to LaSalle National Bank, as Trustee under that certain Pooling and
Servicing Agreement dated April 1, 1996; (iii) the long term fixed rate debt
provided to Borrower in the principal face amount of $63,500,000 which matures
on December 31, 2002, as evidenced by that certain Note dated December 11, 1995
made by Borrower to the order of Connecticut General Life Insurance Company in
the principal face amount of $63,500,000; (iv) the long term fixed rate debt
provided to The Woodlands Corporation ("Woodlands") in the principal face
amount of $13,000,000, which matures on September 1, 2001, as evidenced by that
certain Promissory Note dated August 10, 1994, made by Woodlands to the order
of Hartford Life Insurance Company; (v) the long term fixed rate debt provided
to ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.P. ("301 Congress") by Northwestern Mutual Life
Insurance Company ("Northwestern") in the
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original principal face amount of $26,000,000, which matures on January 1,
2004, as evidenced by that certain Promissory Note dated December 26, 1996 made
by 301 Congress to the order of Northwestern in the principal face amount of
$26,000,000; (vi) the debt maturing on July 1, 1999, in the original face
amount of $115,000,000, assumed by Crescent Real Estate Funding III, L.P.
("Funding III"), Crescent Real Estate Funding IV, L.P. ("Funding IV"), and
Crescent Real Estate Funding V, L.P. ("Funding V") pursuant to an Assumption
Agreement dated October 7, 1996, as evidenced by that certain Promissory Note
Secured by Deed of Trust dated June 30, 1994 made by Greenway Plaza, Ltd. and
Nine Greenway, Ltd. to the order of Nomura in the principal face amount of
$115,000,000, which has been assigned to LaSalle National Bank, as Trustee
under that certain Pooling and Servicing Agreement dated as of August 1, 1994;
and (vii) the debt maturing on July 1, 2020, in the original face amount of
$8,900,000.00, assumed by Crescent Real Estate Funding VI, L.P. ("Funding VI")
pursuant to a Consent and Assumption Agreement dated December 5, 1996, as
evidenced by that certain Promissory Note dated June 28, 1995 made by Canyon
Ranch-Bellefontaine Associates, L.P. to the order of Nomura in the principal
face amount of $8,900,000.00 which has been assigned to LaSalle National Bank,
as Trustee under that certain Pooling and Servicing Agreement dated as of
August 1, 1995.
Federal Funds Effective Rate. For any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
(3) Federal funds brokers of recognized standing selected by the Agent.
Fixed Charges. With respect to any Person for any fiscal period, an amount
equal to Debt Service plus Non-Incremental Revenue Generating Capital
Expenditures plus/minus Rent Adjustments, all as determined in accordance with
generally accepted accounting principles.
Funds Available for Distribution. With respect to any Person for any
fiscal period, an amount equal to Funds from Operations plus non-real estate
depreciation and the amortization of deferred financing costs plus/minus Rent
Adjustments minus Non-Incremental Revenue Generating Capital Expenditures
(excluding any extraordinary or nonrecurring non-tenant related capital
expenditures).
Funds from Operations. With respect to any Person for any fiscal period,
the net income (or deficit) of such Person computed in accordance with
generally accepted accounting principles, excluding financing costs and gains
(or losses) from debt restructuring and sales of property, plus depreciation
(except non-real estate depreciation) and amortization (except the amortization
of deferred financing costs), and after adjustments for unconsolidated
partnerships and joint ventures.
generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its
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predecessors, as in effect from time to time and (b) consistently applied with
past financial statements of the Borrower adopting the same principles;
provided that a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
General Partner. Crescent Real Estate Equities, Ltd., a Delaware
corporation.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
Guarantor. Crescent Real Estate Equities Company, a Texas real estate
investment trust, having a usual place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Guarantor's Compliance Certificate. The compliance certificate which
Guarantor is required to provide to the Agent pursuant to the terms of the
Guaranty.
Guaranty. The Unconditional Guaranty of Payment and Performance, dated of
even date herewith, made by Guarantor in favor of the Agent and the Banks, as
the same may be modified or amended, such Guaranty to be in form and substance
satisfactory to the Agent and the Majority Banks.
Hazardous Substances. See Section 6.17(b).
Implied Rating. With respect to a Person, the most recent rating issued
from time to time by a Rating Agency as is applicable to such Person's senior
unsecured long-term debt, or if no such senior unsecured long-term debt is
outstanding, then the most recent rating issued from time to time by a Rating
Agency as would hypothetically be applicable to such Person's senior unsecured
long-term debt (i.e., an implied rating).
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should
be made by footnotes thereto, including in any event and whether or not so
classified: (a) all debt and similar monetary obligations, whether direct or
indirect; (b) all liabilities secured by any mortgage, pledge, security
interest, lien, charge or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; (c) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest directly
or indirectly in a Person, to purchase indebtedness, or to assure the owner of
indebtedness against loss through an agreement to purchase goods, supplies or
services for the purpose of enabling the debtor to make payment
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of the indebtedness held by such owner or otherwise, the obligation to
reimburse the issuer in respect of any letter of credit, and obligations under
interest rate swaps and similar agreements; (d) any obligation as a lessee or
obligor under a Capitalized Lease; (e) all subordinated debt; (f) all
obligations to purchase under agreements to acquire, or otherwise to contribute
money with respect to, properties under "development" within the meaning of
Section 8.9; and (g) a Person's pro rata share of any of the above-described
obligations of its unconsolidated affiliates.
Interest Payment Date. (a) As to each Loan, the first day of each calendar
month during the term of such Loan, and (b) also as to each Eurodollar Rate
Loan, the last day of the Interest Period relating thereto.
Interest Period. With respect to each Eurodollar Rate Loan (a) initially,
the period commencing on the Drawdown Date of such Loan and ending one, two,
three, six or twelve months thereafter, and (b) thereafter, each period
commencing on the day following the last day of the next preceding Interest
Period applicable to such Loan and ending on the last day of one of the periods
set forth above, as selected by the Borrower in a Conversion Request; provided
that all of the foregoing provisions relating to Interest Periods are subject
to the following:
(A) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall end and the next Interest Period shall commence on
the next preceding or succeeding Eurodollar Business Day as determined
conclusively by the Reference Bank in accordance with the then current
bank practice in the Eurodollar interbank market;
(B) if the Borrower shall fail to give notice as provided in Section
4.1, the Borrower shall be deemed to have requested a conversion of the
affected Eurodollar Rate Loan to a Base Rate Loan on the last day of the
then current Interest Period with respect thereto; and
(C) no Interest Period relating to any Eurodollar Rate Loan shall
extend beyond the Maturity Date.
Investment Grade Rating. With respect to any Person, an Implied Rating
equal to or more favorable than BBB- with respect to a rating issued by
Standard & Poors Corporation (or in the case of a rating issued by ▇▇▇▇▇'▇
Investor Service, Inc., a rating of Baa3). If, at any time after a Person
obtains an Investment Grade Rating, (a) no Implied Rating for such Person's
senior unsecured long-term debt shall have been issued or confirmed in writing
by either of the Rating Agencies within the previous 365 days, or (b) the
rating system of either of the Rating Agencies (as opposed to the rating of a
Person) shall change, or (c) either of the Rating Agencies shall no longer
perform the functions of a securities rating agency, then the Borrower and the
Agent shall promptly negotiate in good faith to amend the reference to the
specific ratings in this definition for the determination of the Investment
Grade Rating, and pending such amendment, the applicable rating in effect as of
the date the event described in this paragraph occurred shall continue to
apply.
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Investments. With respect to any Person, all shares of capital stock, evidences
of Indebtedness and other securities issued by any other Person, all loans,
advances, or extensions of credit to, or contributions to the capital of, any
other Person, all purchases of the securities or business or integral part of
the business of any other Person and commitments and options to make such
purchases, all interests in real property, and all other investments; provided,
however, that the term "Investment" shall not include (i) equipment, inventory
and other tangible personal property acquired in the ordinary course of
business, or (ii) current trade and customer accounts receivable for services
rendered in the ordinary course of business and payable in accordance with
customary trade terms. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any investment
represented as a guaranty shall be taken at not less than the principal amount
of the obligations guaranteed and still outstanding; (b) there shall be
included as an Investment all interest accrued with respect to Indebtedness
constituting an Investment unless and until such interest is paid; (c) there
shall be deducted in respect of each such Investment any amount received as a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (d) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (b) may be deducted when
paid; and (e) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Leases. Leases, licenses and agreements whether written or oral, relating
to the use or occupation of space in or on the Real Estate by persons other
than the Borrower.
Liens. See Section 8.2.
Limited Partner. Guarantor, successor by merger with CRE Limited Partner,
Inc., a Delaware corporation.
Loan Documents. This Agreement, the Notes, the Guaranty and all other
documents, instruments or agreements now or hereafter executed or delivered by
or on behalf of the Borrower or a Guarantor in connection with the Loans.
Loan or Loans. An individual loan or the aggregate loans, as the case may
be, to be made by the Banks hereunder.
Loan Request. See Section 2.6.
Magellan. Magellan Health Services, Inc., a Delaware corporation.
Majority Banks. As of any date, the Bank or Banks whose aggregate
Commitment Percentage is equal to or greater than the required percentage, as
determined by the Banks, required to approve such matter, as disclosed by the
Agent to the Borrower from time to time.
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Master Lease Agreement. That certain Master Lease Agreement appended to
the Sale Agreement, to be entered into between the Borrower, as Landlord, and
CBHS and certain other parties, as Tenant.
Maturity Date. June 6, 2000, or such earlier date on which the Loans shall
become due and payable pursuant to the terms hereof.
Modified Book Asset Value. For each type of direct or indirect interest in
real estate (undeveloped land, hotels/resorts, behavioral healthcare facilities
and Class A institutional quality office buildings), an amount equal to the sum
of the aggregate net book value of assets of that type (determined in
accordance with the acquisition cost of such assets and as shown on the books
and records of the Borrower), plus that type of Real Estate's applicable share
of real estate depreciation since the date of the Borrower's initial public
offering, plus that type of Real Estate's applicable share of the one-time
market value adjustment described in Section 9.9.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Income (or Deficit). With respect to any Person (or any asset of any
Person) for any fiscal period, the net income (or deficit) of such Person (or
attributable to such asset), after deduction of all expenses, taxes and other
proper charges, determined in accordance with generally accepted accounting
principles.
Non-Competition Agreements. Noncompetition Agreements dated May 5, 1994,
from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Non-Incremental Revenue Generating Capital Expenditures. With respect to
any Person for any fiscal period, an amount equal to the sum of the amount of
capital expenditures paid in cash by such Person or with respect to such asset
(other than tenant related building improvements) during such fiscal period and
considered to be "Non-Incremental Revenue Generating", as such term is defined
by industry standards and as applied by the Borrower historically, plus the
amount of leasing costs (including leasing commission and tenant improvements)
paid in cash by such Person or with respect to such asset during such fiscal
period and considered to be "Non-Incremental Revenue Generating", as such term
is defined by industry standards and as applied by the Borrower historically.
Non-Recourse Indebtedness. Indebtedness of the Borrower or a Subsidiary
which is secured by one or more parcels of Real Estate and related personal
property or interests therein and Short-term Investments and is not a general
obligation of the Borrower or any Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Estate securing such
Indebtedness, the improvements and leases thereon and the rents and profits
thereof and the Short-term Investments securing such Indebtedness.
Notes. See Section 2.4.
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Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the Borrower
to any of the Banks and the Agent, individually or collectively, under this
Agreement or any of the other Loan Documents or in respect of any of the Loans
or the Notes, or other instruments at any time evidencing any of the foregoing,
whether existing on the date of this Agreement or arising or incurred
hereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal entity,
and any government or any governmental agency or political subdivision thereof.
Private Letter Rating. With respect to a Person, the rating issued from
time to time by a Rating Agency (or in the event that the Borrower obtains a
rating from two or more nationally recognized rating agencies, the lowest of
the ratings issued from time to time by two or more of such rating agencies (at
least one of which shall be a Rating Agency)) as is applicable to the most
recently issued privately placed unsecured long-term debt issuance of such
Person that remains outstanding; provided that each of such ratings shall be
equal to or more favorable than BBB-with respect to a rating issued by Standard
& Poors Corporation, Baa3 in the case of a rating issued by ▇▇▇▇▇'▇ Investor
Service, Inc., or a comparable rating as reasonably determined by the Agent in
the case of a rating issued by another rating agency.
Prospectus. The 10-K of Guarantor, dated December 31, 1996 and filed with
the SEC.
Rating Agencies. Standard & Poor's Corporation and ▇▇▇▇▇'▇ Investors
Service, Inc.
Rating Notice. See Section 7.4(i).
Rating Notice Date. The earlier of (a) the date a Rating Notice or notice
of the issuance of a Private Letter Rating, as applicable, is received by the
Agent, or (b) the date the Agent, having received actual notice of a change by
the Rating Agency of the Borrower's Implied Rating, sends notice to the
Borrower of such change, provided that nothing contained herein shall imply any
obligation of the Agent to monitor such rating changes.
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Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Reference Bank. BankBoston.
Register. See Section 18.2.
REIT Status. With respect to Guarantor, its status as a real estate
investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.17(c)(iii).
Rent Adjustments. For any Person, straight line adjustments to rent
payable under Leases, as determined in accordance with generally accepted
accounting principles.
Rent Payments. For any period, the "Rent" as such term is defined in the
Master Lease Agreement.
Required Behavioral Healthcare Facilities Capital Expenditures. With
respect to any fiscal period, an amount equal to the capital expenditures
incurred by CBHS with respect to the Behavioral Healthcare Facilities pursuant
to the Master Lease Agreement during such fiscal period, determined in
accordance with generally accepted accounting principles.
Residential Corporations. Collectively Mira Vista Development Corp.,
Houston Area Development Corp. and Crescent Development Management Corp.
Revocation Costs. See Section 2.6.
Sale Agreement. That certain Real Estate Purchase and Sale Agreement dated
as of January 29, 1997, between the Borrower, as Purchaser, and Magellan, as
Seller, as amended by that certain First Amendment to Real Estate Purchase and
Sale Agreement dated as of February 28, 1997, between the Borrower and
Magellan, with respect to the purchase of the Behavioral Healthcare Facilities.
SEC. The federal Securities and Exchange Commission.
Secured Indebtedness. Indebtedness of a Person that is pursuant to a
Capitalized Lease or is directly or indirectly secured by a Lien.
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Short-term Investments. Investments described in subsections (a) through
(g), inclusive, of Section 8.3.
State. A state of the United States of America.
Subsidiary. (a) Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own directly
or indirectly through a Subsidiary or Subsidiaries at least a majority (by
number of votes or controlling interests) of the outstanding Voting Interests,
(b) any other entity the accounts of which are consolidated with the accounts
of the Borrower, and (c) the Residential Corporations.
Test Period. See Section 9.2.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time.
Type. As to any Loan, its nature as a Base Rate Loan or a Eurodollar Rate
Loan.
Unencumbered Operating Property. An Unencumbered Operating Property shall
mean Real Estate (a) which is owned one hundred percent (100%) in fee simple by
the Borrower, or (b) in which the Borrower owns a leasehold interest pursuant
to a mortgageable ground lease having a remaining term of not less than fifty
(50) years (calculated from the date of acquisition of such interest), or (c)
which is owned by an entity which is controlled by the Borrower or in which the
Borrower is the general partner or managing member provided that (i) the
Borrower has control over all major and day-to-day decisions with respect to
the operation of such entity (including, without limitation, the decision to
sell or encumber the assets of such entity), (ii) the organizational agreements
of such entity specifically authorize the Borrower to pledge the assets of such
entity as security for the Obligations, and (iii) the Borrower certifies to the
Agent that applicable law does not preclude such entity from pledging its
assets to secure the Obligations; and in any case which satisfies all of the
following conditions:
(x) such Unencumbered Operating Property shall be free and clear of all
Liens other than the Liens permitted in Section 8.2(i), (iii) and (vi); and
(y) such Unencumbered Operating Property shall consist solely of Real
Estate which is an income producing operating property.
Variable Interest Rate. A rate of interest payable with respect to
Indebtedness that may vary, float or change during the term of such
Indebtedness (that is, a rate of interest that is not fixed for the entire term
of such Indebtedness).
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the
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corporation, association, partnership, trust or other business entity involved,
or (b) to control, manage, or conduct the business of the corporation,
partnership, association, trust or other business entity involved.
Section 1.2. Rules of Interpretation.
1.2.1. A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
1.2.2. The singular includes the plural and the plural includes the
singular.
1.2.3. A reference to any law includes any amendment or modification
to such law.
1.2.4. A reference to any Person includes its permitted successors
and permitted assigns.
1.2.5. Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
1.2.6. The words "include", "includes" and "including" are not
limiting.
1.2.7. The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking
approval after full and fair disclosure to the party giving approval of
all material facts necessary in order to determine whether approval should
be granted.
1.2.8. All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein.
1.2.9. Reference to a particular "Section ", refers to that section
of this Agreement unless otherwise indicated.
1.2.10. The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
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SECTION 2. THE REVOLVING CREDIT FACILITY.
Section 2.1. Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, each of the Banks severally agrees to lend to the
Borrower, and the Borrower may borrow (and repay and reborrow) from time to
time between the Closing Date and the Maturity Date, upon notice by the
Borrower to the Agent given in accordance with Section 2.6, such sums as are
requested by the Borrower for the purposes set forth in Section 2.9 (but
subject to the limitations set forth in Section 2.9) up to a maximum aggregate
principal amount outstanding (after giving effect to all amounts requested) at
any one time equal to such Bank's Commitment; provided, that, in all events no
Default or Event of Default shall have occurred and be continuing and the
Borrower's financial statements as required pursuant to Section 2.6(iii) shall
demonstrate compliance with all covenants set forth therein; and provided,
further, that the outstanding principal amount of the Loans (after giving
effect to all amounts requested) shall not at any time exceed the Total
Commitment. The Loans shall be made pro rata in accordance with each Bank's
Commitment Percentage. Each request for a Loan hereunder shall constitute a
representation and warranty by the Borrower that all of the conditions set
forth in Section 10 and Section 11, in the case of the initial Loan, and
Section 11, in the case of all other Loans, have been satisfied on the date of
such request (except as otherwise permitted in Paragraph 4 of the form of Loan
Request with respect to warranties and representations). No Bank shall have any
obligation to make Loans to the Borrower in the maximum aggregate principal
amount outstanding of more than the principal face amount of its Note.
Section 2.2. Facility Fee. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment
Percentages a facility fee calculated at the rate of one-fourth of one percent
(0.25%) per annum on the daily amount by which the Total Commitment exceeds the
outstanding principal amount of Loans during each calendar quarter or portion
thereof commencing on the date hereof and ending on the Maturity Date. The
facility fee shall be payable quarterly in arrears on the fifth day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof, or on any earlier date on which the Commitments shall be reduced or
shall terminate as provided in Section 2.3, with a final payment on the
Maturity Date. Any payment due under this Section 2.2 shall be prorated for any
partial calendar quarter.
Section 2.3. Reduction of Commitment. The Borrower shall have the right at
any time and from time to time upon five Business Days' prior written notice to
the Agent to reduce by $5,000,000 or an integral multiple of $100,000 in excess
thereof or to terminate entirely the unborrowed portion of the Commitments,
whereupon the Commitments of the Banks shall be reduced pro rata in accordance
with their respective Commitment Percentages of the amount specified in such
notice or, as the case may be, terminated, any such reduction to be without
penalty (unless such reduction requires repayment of a Eurodollar Rate Loan).
Promptly after receiving any notice of the Borrower delivered pursuant to this
Section 2.3, the Agent will notify the Banks of the substance thereof. Upon the
effective date of any such reduction or termination, the Borrower shall pay to
the Agent for the respective accounts of the Banks the full amount of any
facility fee under Section 2.2 then accrued on the amount of the reduction. No
reduction or termination of the Commitment may be reinstated.
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Section 2.4. Notes. The Loans shall be evidenced by separate promissory
notes of the Borrower in substantially the form of Exhibit A hereto
(collectively, the "Notes"), dated of even date with this Agreement and
completed with appropriate insertions. One Note shall be payable to the order
of each Bank in the principal amount equal to such Bank's Commitment or, if
less, the outstanding amount of all Loans made by such Bank, plus interest
accrued thereon, as set forth below. The Borrower irrevocably authorizes each
Bank to make or cause to be made, at or about the time of the Drawdown Date of
any Loan or at the time of receipt of any payment of principal thereof, an
appropriate notation on such Bank's Record reflecting the making of such Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Loans set forth on such Bank's Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount on such Bank's Record
shall not limit or otherwise affect the obligations of the Borrower hereunder
or under any Note to make payments of principal of or interest on any Note when
due.
Section 2.5. Interest on Loans.
2.5.1. Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which
such Base Rate Loan is paid in full or is converted to a Eurodollar Rate
Loan from a Base Rate Loan at the Base Rate.
2.5.2. Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the sum of the Applicable Margin plus the Eurodollar Rate determined for
such Interest Period.
2.5.3. The Borrower promises to pay interest on each Loan in arrears
on each Interest Payment Date with respect thereto.
2.5.4. Base Rate Loans and Eurodollar Rate Loans may be converted to
Loans of the other Type as provided in Section 4.1.
Section 2.6. Requests for Loans. The Borrower (i) shall notify the Agent
of a potential request for a Loan as soon as possible prior to the Borrower's
proposed Drawdown Date, and (ii) shall give to the Agent written notice in the
form of Exhibit B hereto (or telephonic notice confirmed in writing in the form
of Exhibit B hereto) of each Loan requested hereunder (a "Loan Request") no
later than 10:00 a.m. three (3) Business Days prior to the proposed Drawdown
Date. The Agent shall promptly notify each of the Banks following the receipt
of a Loan Request, but in any event no later than 2:00 p.m. three (3) Business
Days prior to the proposed Drawdown Date. Borrower shall not make a Loan
Request more frequently than three times each month. Each such notice shall
specify with respect to the requested Loan the proposed principal amount,
Drawdown Date, Interest Period (if applicable) and Type. Each such notice shall
also contain (i) a statement as to the purpose for which such advance shall be
used (which purpose shall be in accordance with the terms of Section 2.9), (ii)
a certification by the chief financial or chief accounting
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officer of the General Partner that the Borrower is and will be in compliance
with all covenants under the Loan Documents after giving effect to the making
of such Loan, (iii) a Compliance Certificate prepared using the financial
statements of the Borrower most recently provided or required to be provided to
the Agent under Section 6.4 or Section 7.4 adjusted in the best good faith
estimate of the Borrower to give effect to the proposed advance and
incorporating the operating performance of any asset to be acquired, and (iv)
the Guarantor's Compliance Certificate prepared using the financial statements
of Guarantor most recently provided or required to be provided to the Agent
pursuant to the Guaranty adjusted in the best good faith estimate of Guarantor
to the date of the proposed advance. Promptly upon receipt of any such notice,
the Agent shall notify each of the Banks thereof. Except as provided in this
Section 2.6, each such Loan Request shall be irrevocable and binding on the
Borrower and shall obligate the Borrower to accept the Loan requested from the
Banks on the proposed Drawdown Date, provided that, in addition to the
Borrower's other remedies against any Bank which fails to advance its
proportionate share of a requested Loan, such Loan Request may be revoked by
the Borrower by notice received by the Agent no later than the Drawdown Date if
any Bank fails to advance its proportionate share of the requested Loan in
accordance with the terms of this Agreement, provided further that the Borrower
shall be liable in accordance with the terms of this Agreement to any Bank
which is prepared to advance its proportionate share of the requested Loan for
any costs, expenses or damages incurred by such Bank as a result of the
Borrower's election to revoke such Loan Request (the "Revocation Costs").
Nothing herein shall prevent the Borrower from seeking recourse against any
Bank that fails to advance its proportionate share of a requested Loan as
required by this Agreement. The Borrower may, without any liability for the
payment of the Revocation Costs or other cost or penalty, revoke a Loan Request
by delivering notice thereof to each of the Banks no later than 3:00 p.m. three
(3) Business Days prior to the Drawdown Date. Each Loan Request shall be (a)
for a Base Rate Loan in a minimum aggregate amount of $1,000,000 or an integral
multiple of $100,000 in excess thereof, or (b) for a Eurodollar Rate Loan in a
minimum aggregate amount of $2,000,000 or an integral multiple of $100,000 in
excess thereof; provided, however, that there shall be no more than five (5)
Eurodollar Rate Loans outstanding at any one time.
Section 2.7. Funds for Loans.
(a) Not later than 11:00 a.m. (Boston time) on the proposed Drawdown Date
of any Loans, each of the Banks will make available to the Agent, at the
Agent's Head Office, in immediately available funds, the amount of such Bank's
Commitment Percentage of the amount of the requested Loans which may be
disbursed pursuant to Section 2.1. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by Section 10 and Section 11 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrower the aggregate amount
of such Loans made available to the Agent by the Banks by wire transfer in
accordance with Borrower's instructions. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Loans to the
extent it is obligated to fund such Loan hereunder shall not relieve any other
Bank from its several obligation hereunder to make available to the Agent the
amount of such other Bank's Commitment Percentage of any requested
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Loans, including any additional Loans that may be requested by the Borrower
subject to the terms and conditions hereof to provide funds to replace those
not advanced by the Bank so failing or refusing, provided that the Borrower may
by notice received by the Agent no later than the Drawdown Date refuse to
accept any Loan which is not fully funded in accordance with the Borrower's
Loan Request subject to the terms of Section 2.6 (except that such refusal
shall not relieve the Borrower of its obligation to pay the Revocation Costs);
provided further that no Bank shall be obligated to advance any amount in
excess of the limits set forth in Section 2.1. In the event of any such failure
or refusal, the Banks not so failing or refusing shall be entitled to a
priority position as against the Bank or Banks so failing or refusing for such
Loans as provided in Section 12.4.
(b) Unless Agent shall have been notified by any Bank prior to the
applicable Drawdown Date that such Bank will not make available to Agent such
Bank's pro rata share of a proposed Loan, Agent may in its discretion assume
that such Bank has made such Loan available to Agent in accordance with the
provisions of this Agreement and Agent may, if it chooses, in reliance upon
such assumption make such Loan available to Borrower, and such Bank shall be
liable to the Agent for the amount of such advance.
Section 2.8. Intentionally Omitted.
Section 2.9. Use of Proceeds. The Borrower will use the proceeds of the
Loans solely to provide short-term financing (a) for the acquisition of fee
interests in Real Estate which is utilized principally for Class A office
space, behavioral healthcare facilities and/or hotel/resort properties which
are of institutional quality or other income-producing real estate reasonably
satisfactory to the Majority Banks, subject to the limitations in Section 9.8,
(b) for working capital purposes, (c) for the acquisition of non-income
producing land assets or real estate assets which are held in fee simple or in
any form other than undivided fee simple ownership (such as cotenancy
interests, leasehold interests, partnership interests, shares of stock in
corporations owning real estate, or through mortgages or participation
interests in or assignments of mortgages), subject however to the limitations
in Section 9.8, and (d) for such other purposes as the Majority Banks in their
discretion from time to time may agree to in writing. Without the consent of
the Majority Banks, in no event may any amount advanced under the Loan be used
directly or indirectly (i) to pay dividends or other distributions to any
partner or member of the Borrower, the Guarantor or the shareholders of the
Guarantor or (ii) except as expressly permitted in Section 8.9, with respect to
the obligations described in Schedule 8.1(h) or with respect to the Investments
described in Section 8.3(k) and (m), to make advances, loans, Investments or
other contributions to, or in any other manner "downstream" into, Crescent Real
Estate Funding I, L.P., Crescent Real Estate Funding II, L.P., Crescent Real
Estate Funding III, L.P., Crescent Real Estate Funding IV, L.P., Crescent Real
Estate Funding V, L.P., Crescent Real Estate Funding VI, L.P. or any other
Subsidiary of the Borrower whether now existing or hereafter formed. Without
the consent of the Majority Banks, except with respect to the development of
Phase II at the project commonly referred to as "The Avallon" (and the
potential development of Phase III at the Avallon), tenant improvements and the
renovation or demolition and construction of the "Frost Bank Garage" to be
constructed at the northeast corner of the intersection of Lavaca Street and
Ninth Street in Austin, Texas, on land acquired by the Borrower in connection
with the acquisition of the Frost Bank Plaza Building, and the Surtran
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Garage at Continental Plaza as permitted pursuant to Section 8.9, no portion of
the proceeds of the Loan shall be used to develop or construct new commercial
real estate projects or for the substantial renovation or rehabilitation of
commercial real estate projects.
SECTION 3. REPAYMENT OF THE LOANS.
Section 3.1. Stated Maturity. The Borrower promises to pay on the Maturity
Date and there shall become absolutely due and payable on the Maturity Date,
all of the Loans outstanding on such date, together with any and all accrued
and unpaid interest thereon.
Section 3.2. Mandatory Prepayments. The Borrower promises to pay principal
of the Loans prior to stated maturity, as follows:
3.2.1. If at any time the aggregate outstanding principal amount of
the Loans exceeds the Total Commitment, then the Borrower shall
immediately upon demand from Agent pay the amount of such excess to the
Agent for the respective accounts of the Banks for application to the
Loans (it being acknowledged that in the event the Borrower makes such
payment as provided herein, the Borrower shall not be in default of
Section 9.3).
3.2.2. All of Borrower's interest in the gross proceeds of each and
every sale or refinancing of real estate assets of the Borrower and its
Subsidiaries (whether held directly or indirectly), less all reasonable
costs, expenses and commissions paid to unrelated parties and less any
Indebtedness (other than the Obligations) secured by such asset to be
satisfied as a part of such sale or refinance, shall be promptly paid by
the Borrower to the Agent for the account of the Banks as a prepayment of
the Loans to the extent of the outstanding balance of the Loans; provided
that, (x) so long as (i) there has been no acceleration of the maturity of
the Obligations pursuant to Section 12.1, (ii) no Event of Default under
▇▇▇▇▇▇▇ ▇▇.▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), and (o)
has occurred and is continuing, or (iii) no breach of the covenants
contained in Section 8.1, Section 8.2, Section 8.3 or Section 8.7 has
occurred and is continuing, the Borrower shall not as a result of this
Section 3.2(b) be required to reduce the principal balance of the Loans to
less than $50,000,000.00; and (y) with respect to the Borrower's interest
in the gross proceeds of a sale or refinancing of real estate assets of a
Subsidiary in which the Borrower does not own a majority (by number of
votes or controlling interests) of the outstanding Voting Interests, the
Borrower shall pay such gross proceeds to the Agent for the account of the
Banks as soon as distributed to the Borrower by such Subsidiary.
Section 3.3. Optional Prepayments. The Borrower shall have the right, at
its election, to prepay the outstanding amount of the Loans, as a whole or in
part, at any time without penalty or premium; provided, that the full or
partial prepayment of the outstanding amount of any Eurodollar Rate Loans
pursuant to this Section 3.3 may be made only on the last day of the Interest
Period relating thereto except as otherwise required pursuant to Section 4.7.
The Borrower shall give the Agent, no later than 10:00 a.m., Boston time, at
least three (3) Business Days prior written notice
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of any prepayment pursuant to this Section 3.3, in each case specifying the
proposed date of payment of Loans and the principal amount to be paid.
Section 3.4. Partial Prepayments. Each partial prepayment of the Loans
under Section 3.2 and Section 3.3 shall be in the minimum amount of $500,000.00
or an integral multiple of $100,000 in excess thereof (unless the Loans are
being prepaid in full), shall be accompanied by the payment of accrued interest
on the principal prepaid to the date of payment and, after payment of such
interest, shall be applied, in the absence of instruction by the Borrower,
first to the principal of Base Rate Loans and then to the principal of
Eurodollar Rate Loans.
Section 3.5. Effect of Prepayments. Amounts of the Loans prepaid under
Section 3.2 and Section 3.3 prior to the Maturity Date may be reborrowed as
provided in Section 2. Except as otherwise expressly provided herein, all
payments shall first be applied to accrued but unpaid interest and then to
principal.
Section 3.6. Proceeds from Debt or Equity Offering. The Borrower shall
cause all gross proceeds of each and every Debt Offering and Equity Offering,
less all reasonable costs, fees, expenses, underwriting commissions, fees and
discounts incurred in connection therewith, to be promptly paid by the Borrower
to the Agent for the account of the Banks as a prepayment of the Loans to the
extent of the outstanding balance of the Loans; provided that, subject to the
limitations contained in Section 3.2(b) above, the Borrower shall not as a
result of this Section 3.6 be required to reduce the principal balance of the
Loans to less than $50,000,000.00.
SECTION 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. Conversion Options.
4.1.1. The Borrower may elect from time to time to convert any
outstanding Loan to a Loan of another Type and such Loan shall thereafter
bear interest as a Base Rate Loan or a Eurodollar Rate Loan, as
applicable; provided that (i) with respect to any such conversion of a
Eurodollar Rate Loan to a Base Rate Loan, the Borrower shall give the
Agent at least three Business Days' prior written notice of such election,
and such conversion shall only be made on the last day of the Interest
Period with respect to such Eurodollar Rate Loan; (ii) with respect to any
such conversion of a Base Rate Loan to a Eurodollar Rate Loan, the
Borrower shall give the Agent at least four Eurodollar Business Days'
prior written notice of such election and the Interest Period requested
for such Loan, the principal amount of the Loan so converted shall be in a
minimum aggregate amount of $2,000,000 or an integral multiple of $100,000
in excess thereof and, after giving effect to the making of such Loan,
there shall be no more than five (5) Eurodollar Rate Loans outstanding at
any one time; and (iii) no Loan may be converted into a Eurodollar Rate
Loan when any Default or Event of Default has occurred and is continuing.
All or any part of the outstanding Loans of any Type may be converted as
provided herein, provided that no partial conversion shall result in a
Base Rate Loan in an aggregate principal amount of less than $1,000,000 or
a Eurodollar Rate Loan in an aggregate principal amount of less than
$2,000,000 and that the aggregate principal
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amount of each Loan shall be in an integral multiple of $100,000. On the
date on which such conversion is being made, each Bank shall take, to the
extent it deems it necessary to do so, such action as is necessary to
transfer its Commitment Percentage of such Loans to its Domestic Lending
Office or its Eurodollar Lending Office, as the case may be. Each
Conversion Request relating to the conversion of a Base Rate Loan to a
Eurodollar Rate Loan shall be irrevocable by the Borrower.
4.1.2. Any Loan may be continued as such Type upon the expiration of
an Interest Period with respect thereto by compliance by the Borrower with
the terms of Section 4.1; provided that no Eurodollar Rate Loan may be
continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on
the last day of the Interest Period relating thereto ending during the
continuance of any Default or Event of Default.
4.1.3. In the event that the Borrower does not notify the Agent of
its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
Section 4.2. Closing Fee. Upon the execution of this Agreement, the
Borrower shall pay to BankBoston closing fees pursuant to an Agreement
Regarding Fees among the Borrower and BankBoston. Upon the execution of this
Agreement, BankBoston shall pay to the Banks a closing fee in accordance with
their separate agreement.
Section 4.3. Agent's Fee. The Borrower shall pay to the Agent, for the
Agent's own account, an Agent's fee calculated at the rate of $50,000.00 per
year. The Agent's fee shall be payable quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar quarter or portion
thereof. The Agent's fee for any partial calendar quarter shall be prorated.
Section 4.4. Funds for Payments.
4.4.1. All payments of principal, interest, facility fees, Agent's
fees, closing fees and any other amounts due hereunder or under any of the
other Loan Documents shall be made to the Agent, for the respective
accounts of the Banks and the Agent, as the case may be, at the Agent's
Head Office, not later than 3:00 p.m. (Boston time) on the day when due,
in each case in immediately available funds. To the extent funds are
available in such account, the Agent is hereby authorized to charge the
account of the Borrower with BankBoston, on the dates when the amount
thereof shall become due and payable, with the amounts of the principal of
and interest on the Loans and all fees, charges, expenses and other
amounts owing to the Agent and/or the Banks under the Loan Documents.
4.4.2. All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free
and clear of and
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without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions of
any nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If
any such obligation is imposed upon the Borrower with respect to any
amount payable by it hereunder or under any of the other Loan Documents,
the Borrower will pay to the Agent, for the account of the Banks or (as
the case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Banks or the Agent
to receive the same net amount which the Banks or the Agent would have
received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such
other Loan Document.
Section 4.5. Computations. All computations of interest on the Loans and
of other fees to the extent applicable shall be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to Eurodollar Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as reflected on the records
of the Agent from time to time shall be considered prima facie evidence of such
amount.
Section 4.6. Inability to Determine Eurodollar Rate. In the event that,
prior to the commencement of any Interest Period relating to any Eurodollar
Rate Loan, the Agent shall determine in the exercise of its good faith business
judgment that adequate and reasonable methods do not exist for ascertaining the
Eurodollar Rate for such Interest Period, the Agent shall forthwith give notice
of such determination (which shall be conclusive and binding on the Borrower
and the Banks) to the Borrower and the Banks. In such event (a) any Loan
Request with respect to Eurodollar Rate Loans shall be automatically withdrawn
and shall be deemed a request for Base Rate Loans and (b) each Eurodollar Rate
Loan will automatically, on the last day of the then current Interest Period
thereof, become a Base Rate Loan, and the obligations of the Banks to make
Eurodollar Rate Loans shall be suspended until the Agent determines in the
exercise of its good faith business judgment that the circumstances giving rise
to such suspension no longer exist, whereupon the Agent shall so notify the
Borrower and the Banks.
Section 4.7. Illegality. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful, or any central
bank or other governmental authority having jurisdiction over a Bank or its
Eurodollar Lending Office shall assert that it is unlawful, for any Bank to
make or maintain Eurodollar Rate Loans, such Bank shall forthwith give notice
of such circumstances to the Agent and the Borrower and thereupon (a) the
commitment of the Banks to make Eurodollar Rate Loans or convert Loans of
another type to Eurodollar Rate Loans shall forthwith be suspended
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and (b) the Eurodollar Rate Loans then outstanding shall be converted
automatically to Base Rate Loans on the last day of each Interest Period
applicable to such Eurodollar Rate Loans or within such earlier period as may
be required by law.
Section 4.8. Additional Interest. If any Eurodollar Rate Loan or any
portion thereof is repaid or is converted to a Base Rate Loan for any reason on
a date which is prior to the last day of the Interest Period applicable to such
Eurodollar Rate Loan, the Borrower will pay to the Agent upon demand for the
account of the Banks in accordance with their respective Commitment
Percentages, in addition to any amounts of interest otherwise payable
hereunder, any amounts required to compensate the Banks for any losses, costs
or expenses which may reasonably be incurred as a result of such payment or
conversion, including, without limitation, an amount equal to daily interest
for the unexpired portion of such Interest Period on the Eurodollar Rate Loan
or portion thereof so repaid or converted at a per annum rate equal to the
excess, if any, of (a) the interest rate calculated on the basis of the
Eurodollar Rate applicable to such Eurodollar Rate Loan (including any spread
over such Eurodollar Rate) minus (b) the yield obtainable by the Agent upon the
purchase of debt securities customarily issued by the Treasury of the United
States of America which have a maturity date most closely approximating the
last day of such Interest Period (it being understood that the purchase of such
securities shall not be required in order for such amounts to be payable).
Section 4.9. Additional Costs, Etc. Notwithstanding anything herein to the
contrary, if any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon
or otherwise issued to any Bank or the Agent by any central bank or other
fiscal, monetary or other authority (whether or not having the force of law),
shall:
4.9.1. subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment or the Loans
(other than taxes based upon or measured by the income or profits of such
Bank or the Agent), or
4.9.2. materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to any Bank under
this Agreement or the other Loan Documents, or
4.9.3. impose or increase or render applicable any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or commitments of
an office of any Bank, or
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4.9.4. impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, such Bank's Commitment, or any class of loans or commitments of
which any of the Loans or such Bank's Commitment forms a part; and the
result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to such Bank or the Agent hereunder on account of such Bank's
Commitment or any of the Loans, or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or other sum payable hereunder, the amount of
which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed
received by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, within thirty (30) days of
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each
Bank and the Agent in determining such amounts may use any reasonable averaging
and attribution methods, generally applied by such Bank or the Agent.
Notwithstanding the foregoing, the Borrower shall have the right, in lieu of
making the payment referred to in this Section 4.9, to prepay the Loan of the
applicable Bank within thirty (30) days of such demand and avoid the payment of
the amounts otherwise due under this Section 4.9, provided, however, that the
Borrower shall be required to pay together with such prepayment of the Loan all
other costs, damages and expenses otherwise due under Section 4.8 of this
Agreement as a result of such prepayment, and following such prepayment, the
Total Commitment shall be reduced by the amount of the Loan so prepaid, and the
Commitment Percentages of the remaining Banks shall be adjusted based on the
percentage that each Bank's Commitment bears to the adjusted Total Commitment.
Section 4.10. Capital Adequacy. If after the date hereof any Bank
reasonably determines that (a) the adoption of or change in any law, rule,
regulation or guideline regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
any governmental authority charged with the administration thereof, or (b)
compliance by such Bank or its parent bank holding company with any guideline,
request or directive of any such entity regarding capital adequacy (whether or
not having the force of law), has the effect of reducing the return on such
Bank's or such holding company's capital as a consequence of such Bank's
commitment to make Loans hereunder to a level below that which such Bank or
holding company could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or such holding company's then existing
policies with respect to capital adequacy and assuming the full utilization of
such entity's capital) by any
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amount deemed by such Bank to be material, then such Bank may notify the
Borrower thereof. The Borrower agrees to pay to such Bank the amount of such
reduction in the return on capital as and when such reduction is determined,
upon presentation by such Bank of a statement of the amount setting forth the
Bank's calculation thereof. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
Section 4.11. Indemnity of Borrower. The Borrower agrees to indemnify each
Bank and to hold each Bank harmless from and against any loss, cost or expense
that such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment of the principal amount of or any interest on any
Eurodollar Rate Loans as and when due and payable, including any such loss or
expense arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Eurodollar Rate Loans, or (b) default
by the Borrower in making a borrowing or conversion after the Borrower has
given (or is deemed to have given) a Loan Request or a Conversion Request
(excluding, however, any Loan Request that pursuant to Section 2.6 may be
revoked without penalty and the deemed withdrawal of a Loan Request pursuant to
Section 4.6), or (c) default by the Borrower in making the payments or
performing its obligations under Section Section 4.8, 4.9, 4.10, 4.12 or 4.13.
Section 4.12. Interest on Overdue Amounts; Late Charge. Overdue principal
and (to the extent permitted by applicable law) interest on the Loans and all
other overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest payable on demand at a rate per annum equal to
four percent (4.0%) above the Base Rate until such amount shall be paid in full
(after as well as before judgment), or if such rate shall exceed the maximum
rate permitted by law, then at the maximum rate permitted by law. In addition,
the Borrower shall pay a late charge equal to three percent (3%) of any amount
of interest and/or principal payable on the Loans or any other amounts payable
hereunder or under the Loan Documents, which is not paid within ten days of the
date when due.
Section 4.13. Certificate. A certificate, prepared in good faith by a Bank
consistent with such Bank's practice in calculating such amounts, setting forth
any amounts payable pursuant to Section 4.8, Section 4.9, Section 4.10, Section
4.11 or Section 4.12 and a brief explanation of such amounts which are due,
submitted by any Bank or the Agent to the Borrower, shall be conclusive in the
absence of manifest error.
Section 4.14. Limitation on Interest. Notwithstanding anything in this
Agreement to the contrary, all agreements between the Borrower and the Banks
and the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Banks exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum
lawful amount, the interest payable to the Banks shall be reduced to the
maximum amount permitted under applicable law; and if from any circumstance the
Banks shall ever receive anything of value deemed interest by applicable law in
excess of the maximum lawful amount, an amount equal to any excessive interest
shall be applied to the reduction of the principal balance of the Obligations
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and to the payment of interest or, if such excessive interest exceeds the
unpaid balance of principal of the Obligations, such excess shall be refunded
to the Borrower. All interest paid or agreed to be paid to the Banks shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law. This section shall control all agreements between
the Borrower and the Banks and the Agent.
SECTION 5. COLLATERAL SECURITY AND GUARANTY.
Section 5.1. Security. The Banks have agreed to make the Loans to the
Borrower on an unsecured basis. Notwithstanding the foregoing, the Obligations
shall be guaranteed by Guarantor pursuant to the Guaranty.
Section 5.2. Intentionally Omitted.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and the Banks as
follows.
Section 6.1. Corporate Authority, Etc.
6.1.1. Organization; Good Standing. The Borrower is a Delaware
limited partnership duly organized pursuant to a Limited Partnership
Agreement and a Limited Partnership Certificate dated February 9, 1994
filed with the Secretary of State of Delaware and is validly existing and
in good standing under the laws of Delaware. The General Partner is a
Delaware corporation duly organized pursuant to its Articles of
Incorporation and amendments thereto filed with the Secretary of State of
Delaware and is validly existing and in good standing under the laws of
Delaware. Guarantor is a Texas real estate investment trust duly organized
pursuant to its Declaration of Trust and amendments thereto filed with the
Secretary of State of Texas and is validly existing and in good standing
under the laws of the State of Texas. Each of the Borrower, the General
Partner and the Guarantor (i) has all requisite power to own its
respective properties and conduct its respective business as now conducted
and as presently contemplated, and (ii) as to the Borrower, is in good
standing as a foreign entity and is duly authorized to do business in the
jurisdictions where its respective Real Estate is located to the extent
required, and as to the Borrower, the General Partner and the Guarantor,
in each other jurisdiction where a failure to be so qualified in such
other jurisdiction could have a materially adverse effect on the business,
assets or financial condition of such Person. Guarantor is a real estate
investment trust in full compliance with and entitled to the benefits of
Section 856 of the Code. The Borrower is a qualified subsidiary of a real
estate investment trust within the meaning of the Code.
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6.1.2. Subsidiaries. Each of the Subsidiaries of the Borrower (i) is
a corporation, limited partnership, limited liability company or trust
duly organized under the laws of its State of organization and is validly
existing and in good standing under the laws thereof, (ii) has all
requisite power to own its property and conduct its business as now
conducted and as presently contemplated and (iii) is in good standing and
is duly authorized to do business in each jurisdiction where a failure to
be so qualified could have a materially adverse effect on the business,
assets or financial condition of the Borrower or such Subsidiary.
6.1.3. Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower, the General
Partner or the Guarantor is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the authority of such
Person, (ii) have been duly authorized by all necessary proceedings on the
part of such Person, (iii) do not and will not conflict with or result in
any breach or contravention of any provision of law, statute, rule or
regulation to which such Person is subject or any judgment, order, writ,
injunction, license or permit applicable to such Person, (iv) do not and
will not conflict with or constitute a default (whether with the passage
of time or the giving of notice, or both) under any provision of the
articles of incorporation, partnership agreement, declaration of trust or
other charter documents or bylaws of, or any agreement or other instrument
binding upon, such Person or any of its properties, and (v), except as
provided in the Loan Documents, do not and will not result in or require
the imposition of any lien or other encumbrance on any of the properties,
assets or rights of such Person.
6.1.4. Enforceability. The execution and delivery of this Agreement
and the other Loan Documents to which the Borrower, the General Partner or
the Guarantor is or is to become a party are valid and legally binding
obligations of such Person enforceable in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors'
rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion of
the court before which any proceeding therefor may be brought.
Section 6.2. Governmental Approvals. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the
Borrower, the General Partner or the Guarantor is or is to become a party and
the transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained.
Section 6.3. Title to Properties; Leases. Except as set forth on Schedule
6.3 hereto, the Borrower and its Subsidiaries own all of the assets reflected
in the consolidated balance sheet of the Borrower as at the Balance Sheet Date
or acquired since that date (except property and assets sold or otherwise
disposed of in the ordinary course of business since that date), subject to no
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rights of others, including any mortgages, leases, conditional sales
agreements, title retention agreements, liens or other encumbrances except
Liens permitted by this Agreement. Without limiting the foregoing, the Borrower
and its Subsidiaries have good and marketable (or with respect to any
properties in Texas, good and indefeasible) fee simple title to or leasehold
estate in all real property reasonably necessary for the operation of its
business, free from all liens or encumbrances of any nature whatsoever, except
for Permitted Liens. The Borrower or its Subsidiaries is the insured under
owners' policies of title insurance covering all real property owned by it, in
each case in an amount not less than the purchase price for such real property.
Section 6.4. Financial Statements. The Borrower has furnished or caused
Guarantor to furnish to each of the Banks: (a) the consolidated balance sheet
of the Borrower and its Subsidiaries and of Guarantor and its Subsidiaries as
of the Balance Sheet Date certified by the chief financial or accounting
officer of the General Partner and Guarantor, respectively, as fairly
presenting the balance sheet of such Persons for such period, and (b) certain
other financial information relating to the Borrower, Guarantor and their
Subsidiaries requested by the Agent. Guarantor has furnished to each of the
Banks the consolidated balance sheet of Guarantor and its Subsidiaries as of
the Balance Sheet Date. Such balance sheet and statements have been prepared in
accordance with generally accepted accounting principles and fairly present the
financial condition of the Borrower and Guarantor and their respective
Subsidiaries as of such dates and the results of the operations of the Borrower
and Guarantor and their respective Subsidiaries for such periods. There are no
liabilities, contingent or otherwise, of the Borrower, Guarantor or any of
their respective Subsidiaries involving material amounts not disclosed in said
financial statements and the related notes thereto.
Section 6.5. No Material Changes. Since the Balance Sheet Date, there has
occurred no materially adverse change in the financial condition or business of
the Borrower, the Guarantor and their respective Subsidiaries taken as a whole
as shown on or reflected in the consolidated balance sheet of the Borrower and
the Guarantor as of the Balance Sheet Date, or its consolidated statement of
income or cash flows for the fiscal year then ended, other than changes in the
ordinary course of business that have not had any materially adverse effect
either individually or in the aggregate on the business or financial condition
of such Person and changes reflected in the consolidated balance sheet,
consolidated statement of income or cash flows, or other financial information
submitted to the Agent after the Balance Sheet Date.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower and its
Subsidiaries and the General Partner possess all franchises, patents,
copyrights, trademarks, trade names, servicemarks, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known violation of any rights of others,
except where a failure to possess such rights could not have a materially
adverse effect on the business, assets or financial condition of such Person.
Section 6.7. Litigation. Except as stated on Schedule 6.7 there are no
actions, suits, proceedings or investigations of any kind pending or to the
best of the Borrower's knowledge and belief threatened against the Borrower,
the General Partner, the Guarantor or any of the Borrower's
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Subsidiaries before any court, tribunal or administrative agency or board that,
if adversely determined, might, either in any case or in the aggregate,
materially adversely affect the properties, assets, financial condition or
business of such Person or materially impair the right of such Person to carry
on business substantially as now conducted by it, or result in any liability
not adequately covered by insurance, or for which adequate reserves are not
maintained on the balance sheet of such Person, or which question the validity
of this Agreement or any of the other Loan Documents, any action taken or to be
taken pursuant hereto or thereto or any lien or security interest created or
intended to be created pursuant hereto or thereto, or which will adversely
affect the ability of such Person to pay and perform the Obligations in the
manner contemplated by this Agreement and the other Loan Documents.
Section 6.8. No Materially Adverse Contracts, Etc. Neither the Borrower,
the General Partner, the Guarantor nor any of the Borrower's Subsidiaries is
subject to any charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation that has or is expected in the future to have
a materially adverse effect on the business, assets or financial condition of
such Person. Neither the Borrower, the General Partner, the Guarantor nor any
of the Borrower's Subsidiaries is a party to any contract or agreement that has
or is expected, in the judgment of the partners or officers of such Person, to
have any materially adverse effect on the business of any of them.
Section 6.9. Compliance with Other Instruments, Laws, Etc. Neither the
Borrower, the General Partner, the Guarantor nor any of the Borrower's
Subsidiaries is in violation of any provision of its partnership agreement,
charter or other organizational documents, bylaws, or any agreement or
instrument to which it may be subject or by which it or any of its properties
may be bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could result in the
imposition of substantial penalties or materially and adversely affect the
financial condition, properties or business of such Person.
Section 6.10. Tax Status. The Borrower, the General Partner, the Guarantor
and each of the Borrower's Subsidiaries (a) has made or filed all federal and
state income and all other tax returns, reports and declarations required by
any jurisdiction to which it is subject, if applicable or required, except to
the extent such Person has obtained an extension of the deadline to file such
return, (b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, if
applicable or required, except those being contested in good faith and by
appropriate proceedings or where a failure to so pay could not have a
materially adverse effect on the business, assets or financial condition of
such Person and (c) has set aside on its books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply, if applicable or required. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction except for those that are being contested as
permitted by this Agreement, and the partners or officers of such Person know
of no basis for any such claim.
Section 6.11. No Event of Default. No Default or Event of Default has
occurred and is continuing.
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Section 6.12. Holding Company and Investment Company Acts. Neither the
Borrower, the General Partner, the Guarantor nor any of the Borrower's
Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company", as such terms are defined
in the Public Utility Holding Company Act of 1935; nor is it an "investment
company", or an "affiliate company" or a "principal underwriter" of an
"investment company", as such terms are defined in the Investment Company Act
of 1940.
Section 6.13. Absence of UCC Financing Statements, Etc. Except with
respect to Liens permitted by Section 8.2, there is no financing statement,
security agreement, chattel mortgage, real estate mortgage or other document
filed or recorded with any filing records, registry, or other public office,
that purports to cover, affect or give notice of any present or possible future
lien on, or security interest or security title in, any property of the
Borrower or its Subsidiaries or rights thereunder.
Section 6.14. Certain Transactions. Except as set forth in the Prospectus,
none of the partners, officers, trustees, directors, or employees of the
Borrower, the General Partner, the Guarantor or any of the Borrower's
Subsidiaries is a party to any material transaction with the Borrower or any of
its Subsidiaries (other than for services as partners, employees, officers,
trustees and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
partner, officer, trustee, director or such employee or, to the knowledge of
the Borrower, any corporation, partnership, trust or other entity in which any
partner, officer, trustee, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner, unless such contract,
agreement or other arrangement is an arms-length arrangement with terms
comparable to those which would be obtained from an unaffiliated Person or is
otherwise approved by the Agent. For the purposes of this Section 6.14, a
transaction shall be deemed "material" to the extent such transaction would be
required to be disclosed to the shareholders of Guarantor pursuant to
applicable securities laws (including, without limitation, Item 404 of
Regulation SK promulgated by the SEC).
Section 6.15. Employee Benefit Plans. The Borrower and each ERISA
Affiliate has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
Neither the Borrower nor any ERISA Affiliate has (a) sought a waiver of the
minimum funding standard under Section 412 of the Code in respect of any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, (b)
failed to make any contribution or payment to any Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan, or made any amendment to any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, which has
resulted or could result in the imposition of a Lien or the posting of a bond
or other security under ERISA or the Code, or (c) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. None of the Real Estate constitutes a "plan asset" of any
Employee Plan, Multiemployer Plan or Guaranteed Pension Plan.
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Section 6.16. Regulations U and X. No portion of any Loan is to be used by
Borrower for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 6.17. Environmental Compliance. The Borrower has taken all
commercially reasonable steps necessary to investigate the past and present
conditions and usage of the Real Estate and the operations conducted thereon
and, based upon such investigation, makes the following representations and
warranties. All of the representations and warranties in this Section 6.17 with
respect to the Real Estate shall be deemed to except to the matters
specifically set forth in the written environmental site assessment reports
with respect thereto provided to the Agent on or before thirty (30) days after
receipt of written notice from the Agent of those environmental reports that
are in Agent's possession with respect to existing Real Estate, or within sixty
(60) days of the acquisition of Real Estate with respect to Real Estate
acquired after the date hereof, provided that, except for any such exceptions
approved by the Majority Banks, none of such exceptions may individually or in
the aggregate have a materially adverse effect on the business, assets or
financial condition of the Borrower, the General Partner or any of the
Borrower's Subsidiaries.
6.17.1. To the best of the Borrower's knowledge, none of the
Borrower, the General Partner or the Borrower's Subsidiaries or any
operator of the Real Estate, or any operations thereon is in violation, or
alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or
local statute, regulation, ordinance, order or decree relating to the
environment (hereinafter "Environmental Laws"), which violation involves
the Real Estate and would have a material adverse effect on the
environment or the business, assets or financial condition of the
Borrower, the General Partner or any of the Borrower's Subsidiaries.
6.17.2. Neither the Borrower, the General Partner nor any of the
Borrower's Subsidiaries has received notice from any third party
including, without limitation, any federal, state or local governmental
authority, (i) that it has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible party
under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any hazardous waste,
as defined by 42 U.S.C. Section 9601(5), any hazardous substances as
defined by 42 U.S.C. Section 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. Section 9601(33) or any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated,
transported or disposed of have been found at any site at which a federal,
state or local agency or other third party has
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conducted or has ordered that the Borrower, the General Partner or any of
the Borrower's Subsidiaries conduct a remedial investigation, removal or
other response action pursuant to any Environmental Law; or (iii) that it
is or shall be a named party to any claim, action, cause of action,
complaint, or legal or administrative proceeding (in each case, contingent
or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances.
6.17.3. To the best of the Borrower's knowledge, or in the case of
Real Estate acquired after the date hereof, to the best of the Borrower's
knowledge except as may be disclosed to Agent in writing upon the
acquisition of the same: (i) no portion of the Real Estate has been used
as a landfill or for dumping or for the handling, processing, storage or
disposal of Hazardous Substances except in accordance with applicable
Environmental Laws, and no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of the Real
Estate; (ii) in the course of any activities conducted by the Borrower,
the General Partner, the Borrower's Subsidiaries or the operators of any
of their properties, no Hazardous Substances have been generated or are
being used on the Real Estate except in the ordinary course of business
and in accordance with applicable Environmental Laws; (iii) there has been
no past or present releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, disposing or dumping
(a "Release") or threatened Release of Hazardous Substances on, upon, into
or from the Real Estate, which Release would have a material adverse
effect on the value of any of the Real Estate or adjacent properties or
the environment; (iv) there have been no Releases on, upon, from or into
any real property in the vicinity of any of the Real Estate which, through
soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, the Real
Estate; and (v) any Hazardous Substances that have been generated on any
of the Real Estate have been transported off-site only by carriers having
an identification number issued by the EPA or approved by a state or local
environmental regulatory authority having jurisdiction regarding the
transportation of such substance and treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required
under all applicable Environmental Laws, which transporters and facilities
have been and are, to the best of the Borrower's knowledge, operating in
compliance with such permits and applicable Environmental Laws.
6.17.4. Neither the Borrower, the General Partner, the Borrower's
Subsidiaries, nor any Real Estate is subject to any applicable
Environmental Law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or the
giving of notice to any governmental agency or the recording or delivery
to other Persons of an environmental disclosure document or statement by
virtue of the transactions set forth herein and contemplated hereby, or to
the effectiveness of any other transactions contemplated hereby.
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Section 6.18. Subsidiaries. Schedule 6.18 sets forth, as of the date
hereof, all of the Subsidiaries of the Borrower, the form and jurisdiction of
organization of each of the Subsidiaries, and the Borrower's ownership interest
therein.
Section 6.19. Loan Documents. All of the representations and warranties
made by or on behalf of the Borrower, the General Partner, the Guarantor and
the Borrower's Subsidiaries made in this Agreement and the other Loan Documents
or any document or instrument delivered to the Agent or the Banks pursuant to
or in connection with any of such Loan Documents are true and correct in all
material respects, and neither the Borrower nor the Guarantor has failed to
disclose such information as is necessary to make such representations and
warranties not misleading.
Section 6.20. Property. All of the Borrower's and its Subsidiaries' Real
Estate are in good condition and working order subject to ordinary wear and
tear, other than with respect to deferred maintenance existing as of the date
of acquisition of such property which is being corrected or repaired in the
ordinary course of business. The Borrower further has completed an appropriate
investigation of the environmental condition of each such property owned or
leased by the Borrower or its Subsidiaries as of the later of the date of the
Borrower's or such Subsidiaries' purchase thereof or the date upon which such
property was last security for Indebtedness of the Borrower or such Subsidiary,
including preparation or updating of a "Phase I" report and, if recommended by
the "Phase I" report, a "Phase II" report, in each case prepared by a
recognized environmental engineer in accordance with customary standards which
discloses that such property is not in violation of the representations and
covenants set forth in this Agreement, unless satisfactory remediation actions
are being taken. There are no unpaid or outstanding real estate or other taxes
or assessments on or against any property of the Borrower or any of its
Subsidiaries which are payable by the Borrower or its Subsidiaries (except only
real estate or other taxes or assessments, that are not yet due and payable or
are being protested as permitted by this Agreement). There are no pending
eminent domain proceedings against any property of the Borrower or its
Subsidiaries or any part thereof, and, to the knowledge of the Borrower, no
such proceedings are presently threatened or contemplated by any taking
authority which may individually or in the aggregate have any materially
adverse effect on the business or financial condition of the Borrower. None of
the property of Borrower or its Subsidiaries is now damaged as a result of any
fire, explosion, accident, flood or other casualty in any manner which
individually or in the aggregate would have any materially adverse effect on
the business or financial condition of the Borrower.
Section 6.21. Brokers. Neither the Borrower nor any of its Subsidiaries
has engaged or otherwise dealt with any broker, finder or similar entity in
connection with this Agreement or the Loans contemplated hereunder.
Section 6.22. Partners and the Guarantor. General Partner is the sole
general partner of the Borrower and owns a 1% partnership interest in the
Borrower. Guarantor is the sole shareholder of the General Partner. Guarantor
is a limited partner of the Borrower and as of the date of this Agreement owns
approximately an 87% limited partnership interest in the Borrower. Guarantor
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owns no assets other than its stock in the General Partner, its interest in the
Borrower as the Limited Partner, Cash and Short-Term Investments.
Section 6.23. Solvency. As of the Closing Date and after giving effect to
the transactions contemplated by this Agreement and the other Loan Documents,
including all of the Loans to be made hereunder, neither the Borrower nor the
Guarantor is insolvent on a balance sheet basis such that the sum of such
Person's assets exceeds the sum of such Person's liabilities, the Borrower and
the Guarantor are able to pay their respective debts as they become due, and
the Borrower and the Guarantor have sufficient capital to carry on their
respective businesses.
Section 6.24. Other Debt. None of the Borrower, the Guarantor nor any of
their respective Subsidiaries is in default of the payment of any Indebtedness
or the terms of any other mortgage, deed of trust, security agreement,
financing agreement, indenture or other material lease or agreement to which
any of them is a party which relates to Indebtedness or other obligations which
individually or in the aggregate exceed $1,000,000.00. None of the Borrower or
the Guarantor is a party to or bound by any agreement, instrument or indenture
that may require the subordination in right or time of payment of any of the
Obligations to any other indebtedness or obligation of the Borrower or the
Guarantor. The Borrower and the Guarantor have made available to the Agent
copies of all agreements, mortgages, deeds of trust, financing agreements or
other material agreements binding upon the Borrower and the Guarantor and their
Subsidiaries or their respective properties and entered into by the Borrower or
the Guarantor and their Subsidiaries as of the date of this Agreement with
respect to any Indebtedness of such Borrower or Guarantor and their
Subsidiaries.
Section 6.25. Magellan Transaction. As of the date hereof, the Borrower
has provided the Agent with correct and complete copies of all documentation
relating to the Borrower's acquisition of the Behavioral Healthcare Facilities
from Magellan.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
Section 7.1. Punctual Payment. The Borrower will duly and punctually pay
or cause to be paid the principal and interest on the Loans and all interest
and fees provided for in this Agreement, all in accordance with the terms of
this Agreement and the Notes as well as all other sums owing pursuant to the
Loan Documents.
Section 7.2. Maintenance of Office. The Borrower will maintain its chief
executive office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Texas, or at such other place in the United States of America as the Borrower
shall designate upon prior written notice to the Agent and the Banks, where
notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents may be given or made.
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Section 7.3. Records and Accounts. The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries will be made in accordance with
generally accepted accounting principles and (b) maintain reasonably adequate
accounts and reserves for all taxes (including income taxes), depreciation and
amortization of its properties and the properties of its Subsidiaries,
contingencies and other reserves.
Section 7.4. Financial Statements, Certificates and Information. The
Borrower will deliver to the Agent:
7.4.1. as soon as practicable, but in any event not later than 95
days after the end of each fiscal year of the Borrower and the Guarantor,
the audited consolidated balance sheet of the Borrower and its
Subsidiaries and the Guarantor at the end of such year, and the related
audited consolidated statements of income, changes in capital and cash
flows for such year, each setting forth in comparative form the figures
for the previous fiscal year and all such statements to be in reasonable
detail, prepared in accordance with generally accepted accounting
principles, and accompanied by an auditor's report prepared without
qualification by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or by another "Big Six" accounting
firm, and any other information the Banks may need to complete a financial
analysis of the Borrower, together with a written statement from such
accountants to the effect that they have read a copy of this Agreement,
and that, in making the examination necessary to said certification, they
have obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or
Event of Default they shall disclose in such statement any such Default or
Event of Default; provided that such accountants shall not be liable to
the Agent or the Banks for failure to obtain knowledge of any Default or
Event of Default;
7.4.2. as soon as practicable, but in any event not later than 45
days after the end of each fiscal quarter of the Borrower (including the
fourth fiscal quarter in each year), copies of the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
quarter, and the related unaudited consolidated statements of income,
changes in capital and cash flows for the portion of the Borrower's fiscal
year then elapsed, all in reasonable detail and prepared in accordance
with generally accepted accounting principles, together with a
certification by the principal financial or accounting officer of the
General Partner that the information contained in such financial
statements fairly presents the financial position of the Borrower and its
Subsidiaries on the date thereof (subject to year-end adjustments);
7.4.3. contemporaneously with the delivery of the financial
statements referred to in clause (a) above, a statement of all contingent
liabilities of the Borrower and its Subsidiaries which are not reflected
in such financial statements or referred to in the notes thereto
(including, without limitation, all guarantees, endorsements and other
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contingent obligations in respect of indebtedness of others, and
obligations to reimburse the issuer in respect of any letters of credit);
7.4.4. simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement (a "Compliance
Certificate") certified by the principal financial or accounting officer
of the General Partner in the form of Exhibit C hereto setting forth in
reasonable detail computations evidencing compliance with the covenants
contained in Section 9 and the other covenants described therein, and (if
applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
7.4.5. simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above and the Compliance
Certificate referred to in subsection (d) above, a spreadsheet listing
each parcel of Real Estate and its location, date of acquisition, size
(square footage for office and retail assets; number of rooms for
hotel/resort assets; and number of beds for behavioral healthcare
facilities), occupancy level for the quarter most recently ended, cost
(appraised value if acquired prior to October, 1995), rolling four quarter
Net Income (actual lease payments received by the Borrower for
hotel/resort assets and behavioral healthcare facilities) and for office
building assets, the major tenants and percentage of gross leasable area
occupied;
7.4.6. not later than 60 days following each acquisition of an
interest in Real Estate by the Borrower or any of its Subsidiaries (which
for the purposes of this Section 7.4(f) shall include the Investments
described in Section 8.3(i)), each of the following (provided that with
respect to the Investments described in Section 8.3(i), the following
items shall be provided to the extent the same are reasonably available to
the Borrower or its Subsidiaries): (i) a description of the property
acquired, and (ii) a Compliance Certificate prepared using the financial
statements of the Borrower most recently provided or required to be
provided to the Banks under Section 6.4 or this Section 7.4 adjusted in
the best good-faith estimate of the Borrower to give effect to such
acquisition and demonstrating that no Default or Event of Default with
respect to the covenants referred to therein shall exist after giving
effect to such acquisition;
7.4.7. promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments
thereto of the Borrower, the General Partner and the Limited Partner;
7.4.8. prior to the acquisition by the Borrower of any Real Estate or
interest therein costing in excess of $1,000,000.00, a statement of
Borrower that no Default or Event of Default exists or would be caused as
a result of such acquisition;
7.4.9. not later than five (5) Business Days after the Borrower
receives notice of the same from either of the Rating Agencies or
otherwise learns of the same, notice of the issuance of any change in the
rating by either of the Rating Agencies in respect of any
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debt of the Borrower (including any change in an Implied Rating), together
with the details thereof, and of any announcement by either of the Rating
Agencies that any such rating is "under review" or that any such rating
has been placed on a watch list or that any similar action has been taken
by either of the Rating Agencies (collectively a "Rating Notice");
7.4.10. such financial statements and other information with respect
to CBHS as shall be reasonably required by the Agent to test compliance
with the covenants contained in Section 9.10; and
7.4.11. from time to time such other financial data and information
in the possession of the Borrower or its Subsidiaries (including without
limitation auditors' management letters, property inspection and
environmental reports and information as to zoning and other legal and
regulatory changes affecting the Borrower or its Subsidiaries) as the
Agent may reasonably request.
Section 7.5. Notices.
7.5.1. Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any
Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under
this Agreement or under any note, obligation or other evidence of
indebtedness to which or with respect to which the Borrower, the General
Partner, the Guarantor or any of the Borrower's Subsidiaries is a party or
obligor, whether as principal or surety, and such default would permit the
holder of such note or obligation or other evidence of indebtedness to
accelerate the maturity thereof, which acceleration would have a material
adverse effect on the Borrower, the General Partner, the Guarantor or any
of the Borrower's Subsidiaries, the Borrower shall forthwith give written
notice thereof to the Agent describing the notice or action and the nature
of the claimed default.
7.5.2. Environmental Events. The Borrower will promptly give notice
to the Agent (i) upon the Borrower obtaining knowledge of any potential or
known Release, or threat of Release, of any Hazardous Substances at or
from any Real Estate of the Borrower or its Subsidiaries; (ii) of any
violation of any Environmental Law that the Borrower or any of its
Subsidiaries reports in writing or is reportable by such Person in writing
(or for which any written report supplemental to any oral report is made)
to any federal, state or local environmental agency and (iii) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or
other action, including a notice from any agency of potential
environmental liability, of any federal, state or local environmental
agency or board, that in either case involves any Real Estate of the
Borrower or its Subsidiaries or has the potential to materially affect the
assets, liabilities, financial conditions or operations of the Borrower or
any Subsidiary.
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7.5.3. Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within 15 days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Borrower, the General Partner, any of the
Borrower's Subsidiaries or the Guarantor or to which any of such persons
is or is to become a party involving an uninsured claim against any of
such Persons that could reasonably be expected to have a materially
adverse effect on such Person and stating the nature and status of such
litigation or proceedings. The Borrower will give notice to the Agent, in
writing, in form and detail satisfactory to the Agent and each of the
Banks, within ten days of any judgment not covered by insurance, whether
final or otherwise, against the Borrower, the General Partner, any of the
Borrower's Subsidiaries or the Guarantor in an amount in excess of
$500,000.00.
7.5.4. Notice of Proposed Sales, Encumbrances, Refinance or Transfer
of Property. The Borrower will give notice to the Agent of any proposed or
completed sale, encumbrance, refinance or transfer by the Borrower or its
Subsidiaries of any Real Estate or any other Investment described in
Section 8.3(i) within any fiscal quarter of the Borrower, such notice to
be submitted together with the Compliance Certificate provided or required
to be provided to the Banks under Section 7.4 with respect to such fiscal
quarter. The Compliance Certificate shall with respect to any proposed or
completed sale, encumbrance, refinance or transfer be adjusted in the best
good-faith estimate of the Borrower to give effect to such sale,
encumbrance, refinance or transfer and demonstrate that no Default or
Event of Default with respect to the covenants referred to therein shall
exist after giving effect to such sale, encumbrance, refinance or
transfer. Notwithstanding the foregoing, in the event of any sale,
encumbrance, refinance or transfer by the Borrower or its Subsidiaries of
any Real Estate or any other Investment described in Section 8.3(i)
involving an amount in excess of $35,000,000.00, the Borrower shall
promptly give notice to the Agent of such transaction, which notice shall
be accompanied by a Compliance Certificate prepared using the financial
statements of the Borrower most recently provided or required to be
provided to the Banks under Section 6.4 or Section 7.4 adjusted as
provided in the preceding sentence.
Section 7.6. Existence; Maintenance of Properties.
7.6.1. The Borrower will do or cause to be done all things necessary
to preserve and keep in full force and effect its existence as a Delaware
limited partnership. The Borrower will cause each of its Subsidiaries to
do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence. The Borrower will do or cause to be
done all things necessary to preserve and keep in full force all of its
material rights and franchises and those of its Subsidiaries. The Borrower
will, and will cause each of its Subsidiaries to, continue to engage
primarily in the businesses now conducted by it and in related businesses,
unless otherwise consented to by the Majority Banks.
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7.6.2. Irrespective of whether proceeds of the Loans are available
for such purpose, the Borrower (i) will cause all of its properties and
those of its Subsidiaries used or useful in the conduct of its business or
the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment, and (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof in all cases in which the failure so to do would have a material
adverse effect on the condition of its properties or on the financial
condition, assets or operations of the Borrower and its Subsidiaries.
Section 7.7. Insurance. The Borrower will procure and maintain or cause to
be procured and maintained insurance covering the Borrower and the Guarantor
and their respective Subsidiaries and their respective properties (the cost of
such insurance to be borne by the insured thereunder) in such amounts and
against such risks and casualties as are customary for properties of similar
character and location, due regard being given to the type of improvements
thereon, their construction, location, use and occupancy.
Section 7.8. Taxes. The Borrower and each Subsidiary will duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all taxes, assessments and other governmental charges imposed upon it
and upon the Real Estate, sales and activities, or any part thereof, or upon
the income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon any of its
property; provided that any such tax, assessment, charge, levy or claim need
not be paid if the validity or amount thereof shall currently be contested in
good faith by appropriate proceedings and if the Borrower or such Subsidiary
shall have set aside on its books reasonably adequate reserves with respect
thereto; and provided, further, that forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor,
the Borrower and each Subsidiary of the Borrower either (i) will provide a bond
issued by a surety reasonably acceptable to the Agent and sufficient to stay
all such proceedings or (ii) if no such bond is provided, will pay each such
tax, assessment, charge, levy or claim.
Section 7.9. Inspection of Properties and Books. The Borrower shall permit
the Banks, through the Agent or any representative designated by the Agent, to
visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss
the affairs, finances and accounts of the Borrower and its Subsidiaries with,
and to be advised as to the same by, its officers, all at such reasonable times
and intervals as the Agent or any Bank may reasonably request. The Agent shall
use good faith efforts to coordinate such visits and inspections so as to
minimize the interference with and disruption to the Borrower's normal business
operations. From and after the occurrence of an Event of Default which is
continuing, the Borrower shall bear the costs and expenses incurred by Agent or
its representatives in conducting such visits or inspections.
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Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will comply with, and will cause each of its Subsidiaries to comply in
all respects with (i) all applicable laws and regulations now or hereafter in
effect wherever its business is conducted, including all Environmental Laws,
(ii) the provisions of its corporate charter, partnership agreement or
declaration of trust, as the case may be, and other charter documents and
bylaws, (iii) the Prospectus, (iv) all agreements and instruments (other than
the Loan Documents) to which it is a party or by which it or any of its
properties may be bound, (v) all applicable decrees, orders, and judgments, and
(vi) all licenses and permits required by applicable laws and regulations for
the conduct of its business or the ownership, use or operation of its
properties, except when a failure to so comply with the foregoing (i) - (vi)
would not have a material adverse effect on the business, assets or financial
condition of the Borrower or such Subsidiary. If at any time while any Loan or
Note is outstanding or the Banks have any obligation to make Loans hereunder,
any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required
in order that the Borrower may fulfill any of its obligations hereunder, the
Borrower will immediately take or cause to be taken all steps necessary to
obtain such authorization, consent, approval, permit or license.
Section 7.11. Further Assurances. The Borrower will cooperate with, and
will cause each of its Subsidiaries to cooperate with the Agent and the Banks
and execute such further instruments and documents as the Banks or the Agent
shall reasonably request to carry out to their satisfaction the transactions
contemplated by this Agreement and the other Loan Documents.
Section 7.12. Ownership of Real Estate. All interests (whether direct or
indirect) of the Borrower, the General Partner or the Guarantor or their
respective Subsidiaries in income-producing real estate assets acquired after
the date hereof shall be owned directly by the Borrower (other than interests
in residential real estate developments held by the Residential Corporations
and other than as specifically permitted in Section 8.14); provided that, if
the Real Estate cannot be owned directly by the Borrower for a compelling
reason, as determined by the Agent in the exercise of its sole discretion, the
Borrower may hold Real Estate in other forms (such as cotenancy interests,
leasehold interests, partnership interests, membership interests in limited
liability companies, shares of stock in corporations owning real estate, or
through mortgages or participations in or assignments of mortgages) under this
Agreement so long as the Borrower holds at least ninety percent (90%) of the
Voting Interests of the entity owning the assets and has full control of the
operation of such entity, including, without limitation, the right to sell,
encumber, convey or otherwise transfer such entity's assets, to arrange and
refinance such entity's debt and to effect distributions of such entity's
income.
Section 7.13. Investment Advisor. The Borrower shall be self-directed and
the Borrower shall not retain or otherwise rely on any other Person for
investment advisory services.
Section 7.14. Non-Competition Agreements. The Non-Competition Agreements
have been duly executed and delivered, are in full force and effect, and are
the legal, valid and binding obligations of the parties thereto, enforceable in
accordance with their terms. Without the prior written consent of the Agent,
the Borrower shall not (a) amend or modify any of the Non-Competition
Agreements, (b) terminate or surrender any of the Non-Competition Agreements,
or (c) waive or release any other party thereto from the performance or
observation by such Person of any obligation or condition of any of the
Non-Competition Agreements (provided that the foregoing shall not prohibit
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇ from obtaining waivers
to specific transactions from a majority of the independent directors of
Guarantor as provided therein). The Borrower shall, at no cost or expense to
the Agent, enforce, short of termination, the performance and observance of
each and every term, condition and covenant of each of the Non-Competition
Agreements to be performed or observed by the other parties thereunder, and
appear in and defend any action arising out of, or in any manner connected
with, any of the Non-Competition Agreements, and give prompt notice to the
Agent of any claim of default under any of the Non-Competition Agreements,
whether given by the Borrower to the other party thereto, or given by the other
party thereto to the Borrower.
Section 7.15. Business Operations. The Borrower shall operate its business
substantially as described in the Prospectus and in compliance with the terms
and conditions of this Agreement and the Loan Documents.
Section 7.16. Intentionally Omitted.
Section 7.17. Limiting Agreements.
7.17.1. Neither Borrower, the Guarantor, nor any of their respective
Subsidiaries shall enter into any agreement, instrument or transaction
which has or may have the effect of prohibiting or limiting Borrower's
ability to pledge to Agent Real Estate which is owned by the Borrower and
is free and clear of all Liens other than the Liens permitted in Section
8.2(i), (iii) and (vi) or any other assets of the Borrower as security for
the Loans. Borrower shall take, and shall cause Guarantor and their
respective Subsidiaries to take, such actions as are necessary to preserve
the right and ability of Borrower to pledge those Real Estate and other
assets as security for the Loans without any such pledge after the date
hereof causing or permitting the acceleration (after the giving of notice
or the passage of time, or otherwise) of any other Indebtedness of
Borrower, Guarantor, or any of their respective Subsidiaries.
7.17.2. Borrower shall, upon demand, provide to the Agent such
evidence as the Agent may reasonably require to evidence compliance with
this Section 7.17, which evidence shall include, without limitation,
copies of any agreements or instruments which would in any way restrict or
limit the Borrower's ability to pledge assets as security for
Indebtedness, or which provide for the occurrence of a default (after the
giving of notice or the passage of time, or otherwise) if assets are
pledged in the future as security for Indebtedness of the Borrower or any
of its Subsidiaries.
Section 7.18. More Restrictive Agreements. Should the Borrower or the
Guarantor enter into or modify any agreements or documents pertaining to any
existing or future Indebtedness, Debt Offering or Equity Offering, which
agreements or documents include covenants, whether
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affirmative or negative (or any other provision which may have the same
practical effect as any of the foregoing), which are individually or in the
aggregate more restrictive against the Borrower, the Guarantor or their
respective Subsidiaries than those set forth in Articles 8 or 9 of this
Agreement or Paragraph 11 of the Guaranty, the Borrower shall promptly notify
the Agent and, if requested by the Majority Banks, the Borrower, the Agent, and
the Majority Banks shall promptly amend this Agreement and the other Loan
Documents to include some or all of such more restrictive provisions as
determined by the Majority Banks in their sole discretion.
Section 7.19. Applicability of Covenants to Residential Corporations. By
acceptance of this Agreement, the Banks agree that the Borrower's obligations
to cause the Residential Corporations to comply with the covenants set forth in
Articles 7 and 8 of this Agreement shall be limited to the full extent that the
Borrower has the legal right, whether by contract, at law or in equity, to
cause compliance by the Residential Corporations with such covenants.
Section 7.20. Distributions of Income to the Borrower. The Borrower shall
cause all of its Subsidiaries to promptly distribute to the Borrower (but not
less frequently than once each fiscal quarter of the Borrower), whether in the
form of dividends, distributions or otherwise, all profits, proceeds or other
income relating to or arising from its Subsidiaries' use, operation, financing,
refinancing, sale or other disposition of their respective assets and
properties after (a) the payment by each Subsidiary of its Debt Service and
operating expenses for such quarter and (b) the establishment of reasonable
reserves for the payment of operating expenses not paid on at least a quarterly
basis and capital improvements to be made to such Subsidiary's assets and
properties approved by such Subsidiary in the ordinary course of business
consistent with its past practices. Notwithstanding the foregoing, the Borrower
shall enforce its rights at law and in equity to receive distributions from (i)
the Residential Corporations at the same time that distributions are made to
other shareholders of the Residential Corporations, and (ii) Subsidiaries of
the Borrower in which the Borrower owns less than a majority (by number of
votes or controlling interests) of the outstanding Voting Interests.
SECTION 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any of the Banks has any obligation to make any Loans:
Section 8.1. Restrictions on Indebtedness. Subject to the provisions of
Section 9, the Borrower will not, and will not permit any of its Subsidiaries
to, create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:
8.1.1. Indebtedness to the Banks arising under any of the Loan
Documents;
8.1.2. Current liabilities of the Borrower or its Subsidiaries
incurred in the ordinary course of business but not incurred through (i)
the borrowing of money, or (ii) the obtaining of credit except for credit
on an open account basis customarily extended and in fact extended in
connection with normal purchases of goods and services;
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8.1.3. Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of Section 7.8;
8.1.4. Indebtedness in respect of judgments or awards that have been
in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower
shall at the time in good faith be prosecuting an appeal or proceedings
for review and in respect of which a stay of execution shall have been
obtained pending such appeal or review;
8.1.5. Endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
8.1.6. Non-recourse Indebtedness of the Borrower or any Subsidiary of
the Borrower, provided that neither the Borrower nor any of its
Subsidiaries shall incur any Non-recourse Indebtedness in excess of
$10,000,000.00 in any single transaction unless it shall have provided to
the Agent a statement that no Default or Event of Default exists and a
Compliance Certificate demonstrating that the Borrower will be in
compliance with its covenants referred to therein after giving effect to
such incurrence;
8.1.7. Indebtedness in respect of reverse repurchase agreements
having a term of not more than 180 days with respect to Investments
described in Section 8.3(d) or (e);
8.1.8. Indebtedness existing on the date of this Agreement and listed
and described on Schedule 8.1(h) hereto;
8.1.9. Other recourse Indebtedness of the Borrower and its
Subsidiaries in an aggregate outstanding principal amount (excluding the
Obligations) not exceeding $100,000,000.00; provided that neither the
Borrower nor any of its Subsidiaries shall incur any recourse Indebtedness
described in this Section 8.1(i) in excess of $10,000,000.00 in any single
transaction unless it shall have provided to the Agent a statement that no
Default or Event of Default exists and a Compliance Certificate
demonstrating that the Borrower will be in compliance with its covenants
referred to therein after giving effect to such incurrence;
8.1.10. Indebtedness of Subsidiaries of the Borrower to the Borrower;
and
8.1.11. unsecured Debt Offerings which have been granted an
Investment Grade Rating by either of the Rating Agencies at the time of
issuance, or has received an NAIC 1 rating at the time of issuance, or
which in the reasonable judgment of the Majority Banks would likely
receive an Investment Grade Rating or an NAIC 1 rating at the time of
issuance in the event that such a rating was sought from either of the
Rating Agencies or NAIC, as applicable, in an aggregate outstanding
principal amount not exceeding
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$300,000,000.00; provided (i) at the time such Indebtedness is issued the
scheduled maturity date of such Indebtedness is not earlier than two (2)
years after the Maturity Date (after giving effect to any extension of the
Maturity Date which may have been requested by the Borrower prior to the
issuance of such Indebtedness or approved by the Banks, whether or not the
same has become effective), and (ii) if any covenants or restrictions
imposed upon the Borrower or its Subsidiaries or the Guarantor in
connection with such Indebtedness are individually or in the aggregate
more restrictive against the Borrower, its Subsidiaries and the Guarantor
than the covenants and restrictions imposed pursuant to this Agreement or
the other Loan Documents, the Borrower shall promptly notify the Agent and
if requested by the Majority Banks, the Borrower, the Agent, and the
Majority Banks shall promptly amend this Agreement and the other Loan
Documents to include some or all of such more restrictive provisions as
determined by the Majority Banks in their sole discretion; and provided
further that neither the Borrower, its Subsidiaries nor the Guarantor
shall incur any of the Indebtedness described in this Section 8.1(k)
unless it shall have provided to the Banks prior written notice of the
proposed issuance of such Indebtedness, a statement that no Default or
Event of Default exists and a Compliance Certificate that the Borrower
will be in compliance with its covenants referred to herein after giving
effect to such incurrence.
Section 8.2. Restrictions on Liens, Etc. The Borrower will not, and will
not permit any of its Subsidiaries to, (a) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge,
negative pledge, charge, restriction or other security interest of any kind
upon any of its property or assets of any character whether now owned or
hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of its property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional
sale or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than 60 days after the
same shall have been incurred any Indebtedness or claim or demand against it
that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be
given any priority whatsoever over its general creditors; (e) pledge or
otherwise encumber any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; or (f) incur or maintain any
obligation to any holder of Indebtedness of the Borrower or such Subsidiary
which prohibits the creation or maintenance of any lien securing the
Obligations (collectively "Liens"); provided that the Borrower and any
Subsidiary of the Borrower may create or incur or suffer to be created or
incurred or to exist:
(i) liens on properties to secure taxes, assessments and other
governmental charges or claims for labor, material or supplies in respect
of obligations not overdue;
(ii) liens on properties in respect of judgments, awards or
indebtedness, the Indebtedness with respect to which is permitted by
Section 8.1(d), Section 8.1(f) or Section 8.1(i);
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(iii) encumbrances on properties consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property,
landlord's or lessor's liens under leases to which the Borrower or a
Subsidiary of the Borrower is a party, and other minor non-monetary liens
or encumbrances none of which interferes materially with the use of the
property affected in the ordinary conduct of the business of the Borrower
and its Subsidiaries, which encumbrances or liens do not individually or
in the aggregate have a materially adverse effect on the business of the
Borrower individually or of the Borrower and its Subsidiaries on a
consolidated basis;
(iv) [intentionally omitted];
(v) liens on Real Estate and Short-term Investments securing
Non-recourse Indebtedness permitted by Section 8.1(f) or recourse
Indebtedness permitted by Section 8.1(i);
(vi) liens in favor of the Agent and the Banks under the Loan
Documents; and
(vii) liens on office equipment, vehicles, furnishings or equipment
incurred in the ordinary course of business securing a maximum aggregate
outstanding Indebtedness of not more than $1,000,000.00.
Section 8.3. Restrictions on Investments. The Borrower will not, and will
not permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
8.3.1. marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrower or its Subsidiary;
8.3.2. marketable direct obligations of any of the following: Federal
Home Loan Mortgage Corporation, Student Loan Marketing Association,
Federal Home Loan Banks, Federal National Mortgage Association, Government
National Mortgage Association, Bank for Cooperatives, Federal Intermediate
Credit Banks, Federal Financing Banks, Export-Import Bank of the United
States, Federal Land Banks, or any other agency or instrumentality of the
United States of America;
8.3.3. demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$100,000,000; provided, however, that the aggregate amount at any time so
invested with any single bank having total assets of less than
$1,000,000,000 will not exceed $200,000;
8.3.4. securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any State which at the time of purchase are rated by ▇▇▇▇▇'▇
Investors Service, Inc. or by
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Standard & Poor's Corporation at not less than "P 2" if then rated by
▇▇▇▇▇'▇ Investors Service, Inc., and not less than "A 2", if then rated by
Standard & Poor's Corporation;
8.3.5. mortgage-backed securities guaranteed by the Government
National Mortgage Association, the Federal National Mortgage Association
or the Federal Home Loan Mortgage Corporation and other mortgage-backed
bonds which at the time of purchase are rated by ▇▇▇▇▇'▇ Investors
Service, Inc. or by Standard & Poor's Corporation at not less than "Aa" if
then rated by ▇▇▇▇▇'▇ Investors Service, Inc. and not less than "AA" if
then rated by Standard & Poor's Corporation;
8.3.6. repurchase agreements having a term not greater than 90 days
and fully secured by securities described in the foregoing subsection (a),
(b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess
of $500,000,000;
8.3.7. shares of so-called "money market funds" registered with the
SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally in investments described in the
foregoing subsections (a) through (f) and have total assets in excess of
$50,000,000;
8.3.8. Subject to the provisions of Section 9.8, Investments in fee
interests or mortgageable ground leases having a remaining term
(calculated from the date of acquisition of such interest) of not less
than fifty (50) years in Real Estate utilized principally for behavioral
healthcare facilities, Class A office space and/or hotel/resort properties
which are of institutional quality or other income-producing real estate
approved by the Majority Banks, including ▇▇▇▇▇▇▇ money deposits relating
thereto and transaction costs;
8.3.9. Subject to the provisions of Section 9.8, Investments in
undeveloped land and Real Estate which are held in a form other than
undivided fee simple ownership or mortgageable ground leases having a
remaining term (calculated from the date of acquisition of such interest)
of not less than fifty (50) years (such as, without limitation, cotenancy
interests, leasehold interests, partnership interests, membership in a
limited liability company, shares of stock in corporations owning real
estate, or through mortgages or participation interests in or assignments
of mortgages);
8.3.10. Investments in stock of other real estate investment
companies; provided, however, that the aggregate amount at any time so
invested shall not exceed $20,000,000.00;
8.3.11. Investments in convertible non-voting preferred stock and/or
voting common stock of Fresh Choice, Inc.; provided, however, that the
aggregate amount at any time so invested shall not exceed $14,000,000.00;
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8.3.12. Investments in Subsidiaries of the Borrower or affiliates of
such Subsidiaries; and
8.3.13. Investments in HBCLP, Inc.; provided, however, that the
aggregate amount at any time so invested shall not exceed $50,000,000.00.
Section 8.4. Merger, Consolidation. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger, consolidation
or other business combination except (i) the merger or consolidation of one or
more of the Subsidiaries of the Borrower with and into the Borrower and (ii)
the merger or consolidation of two or more Subsidiaries of the Borrower.
Section 8.5. Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or any Subsidiary of the Borrower shall sell
or transfer any Real Estate owned by it in order that then or thereafter the
Borrower or any Subsidiary shall lease back such Real Estate.
Section 8.6. Compliance with Environmental Laws. The Borrower will not,
and will not permit any of its Subsidiaries or any tenants or other occupants
of any of the Real Estate, to do any of the following: (a) use any of the Real
Estate or any portion thereof as a facility for the handling, processing,
storage or disposal of Hazardous Substances, except for small quantities of
Hazardous Substances used in the ordinary course of business and in compliance
with all applicable Environmental Laws, (b) cause or permit to be located on
any of the Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances except in full compliance with
Environmental Laws, (c) generate any Hazardous Substances on any of the Real
Estate except in full compliance with Environmental Laws, (d) conduct any
activity at any Real Estate or use any Real Estate in any manner so as to cause
a Release of Hazardous Substances on, upon or into the Real Estate or any
surrounding properties or any threatened Release of Hazardous Substances which
might give rise to liability under CERCLA or any other Environmental Law, or
(e) directly or indirectly transport or arrange for the transport of any
Hazardous Substances (except in compliance with all Environmental Laws).
The Borrower shall:
(i) in the event of any change in Environmental Laws governing the
assessment, release or removal of Hazardous Substances, which change would
lead a prudent lender to require additional testing to avail itself of any
statutory insurance or limited liability, take all action (including,
without limitation, the conducting of engineering tests at the sole
expense of the Borrower) to confirm that no Hazardous Substances are or
ever were Released or disposed of on the Real Estate; and
(ii) if any Release or disposal of Hazardous Substances shall occur
or shall have occurred on the Real Estate (including without limitation
any such Release or disposal occurring prior to the acquisition of such
Real Estate by the Borrower or its Subsidiary), cause
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the prompt containment and removal of such Hazardous Substances and
remediation of the Real Estate in full compliance with all applicable laws
and regulations and to the reasonable satisfaction of the Majority Banks;
provided, that the Borrower shall be deemed to be in compliance with
Environmental Laws for the purpose of this clause (ii) so long as it or a
responsible third party with sufficient financial resources is taking
reasonable action to remediate or manage any event of noncompliance to the
reasonable satisfaction of the Majority Banks and no action shall have
been commenced by any enforcement agency. The Majority Banks may engage
their own environmental engineer to review the environmental assessments
and the Borrower's compliance with the covenants contained herein.
At any time after an Event of Default shall have occurred hereunder, or,
whether or not an Event of Default shall have occurred, at any time that the
Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Real Estate, or that any of the Real Estate is not in
compliance with the Environmental Laws, the Agent may at its election (and will
at the request of the Majority Banks) obtain such environmental assessments of
such Real Estate prepared by an environmental engineer as may be necessary or
advisable for the purpose of evaluating or confirming (i) whether any Hazardous
Substances are present in the soil or water at or adjacent to such Real Estate
and (ii) whether the use and operation of such Real Estate comply with all
Environmental Laws. Environmental assessments may include detailed visual
inspections of such Real Estate including, without limitation, any and all
storage areas, storage tanks, drains, dry ▇▇▇▇▇ and leaching areas, and the
taking of soil samples, as well as such other investigations or analyses as are
necessary or appropriate for a complete determination of the compliance of such
Real Estate and the use and operation thereof with all applicable Environmental
Laws. All such environmental assessments shall be at the sole cost and expense
of the Borrower.
Section 8.7. Distributions.
8.7.1. The Borrower shall not pay any Distribution to the partners of
the Borrower which for any four (4) successive quarters is in excess of
(i) ninety percent (90%) of its Funds from Operations for such fiscal
quarters, or (ii) one hundred percent (100%) of its Funds Available for
Distribution for such fiscal quarters; provided that the limitation
contained in this Section 8.7(a) shall not preclude the Borrower from
making Distributions to Guarantor in an amount equal to the minimum
distributions required under the Code to maintain the REIT Status of
Guarantor, as evidenced by a certification of the principal financial or
accounting officer of the General Partner containing calculations in
detail reasonably satisfactory in form and substance to the Agent.
8.7.2. In the event that a Default under Section 12.1(a) or (b) or an
Event of Default shall have occurred and be continuing, the Borrower shall
make no Distributions other than Distributions to Guarantor in an amount
equal to the minimum distributions required under the Code to maintain the
REIT Status of Guarantor, as evidenced by a certification of the principal
financial or accounting officer of the General Partner
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containing calculations in detail reasonably satisfactory in form and
substance to the Agent.
8.7.3. Notwithstanding the foregoing, at any time when an Event of
Default shall have occurred and the maturity of the Obligations has been
accelerated, at the option of the Majority Banks the Borrower shall not
make any Distributions whatsoever, directly or indirectly.
Section 8.8. Asset Sales. Except for sales by the Residential Corporations
in the ordinary course of development of residential developments with related
amenities, neither the Borrower nor any Subsidiary shall sell, transfer or
otherwise dispose of any Real Estate (except as the result of a condemnation or
casualty and except for the granting of Permitted Liens) involving an amount in
excess of $5,000,000.00 in any single transaction unless there shall have been
delivered to the Agent a statement that no Default or Event of Default exists
or will exist after giving effect to such sale, transfer or other disposition.
Section 8.9. Development Activity. Without the consent of the Majority
Banks, neither the Borrower nor any Subsidiary shall engage, directly or
indirectly, in the development, construction or substantial renovation or
rehabilitation of commercial real estate (provided that the foregoing shall not
be deemed to be breached by the residential real estate development activities
by the Residential Corporations nor the restoration or rehabilitation of
commercial real estate following damage by casualty or condemnation). The
Borrower acknowledges that the decision of the Majority Banks to grant or
withhold such consent shall be based on such factors as the Majority Banks deem
relevant in their sole discretion, including without limitation, evidence of
sufficient funds both from borrowings (other than from the Loans) and equity to
complete such development and evidence that the Borrower or its Subsidiary has
the resources and expertise necessary to complete such project. Notwithstanding
the foregoing, the Borrower is currently developing for its own account an
office building not exceeding 110,000 square feet on Phase II of the land owned
by Borrower in Austin, Texas known as "The Avallon" and may develop an office
building not exceeding 80,000 square feet on Phase III of the land owned by
Borrower in Austin, Texas known as "The Avallon", provided that with respect to
each such building (a) BMC Software or an affiliate thereof shall have executed
and delivered to Borrower a lease to occupy not less than sixty-five percent
(65%) of such building within one (1) year of completion of the same, and (b)
the actual cost of developing improvements thereon with respect to each such
building shall not exceed $15,000,000.00. Notwithstanding the foregoing,
Borrower can engage in, and proceeds of the Loans may be used for, the
construction of tenant improvements within space to be occupied by tenants of
buildings owned by the Borrower or its Subsidiaries, and for the renovation or
demolition and reconstruction of the Surtran Garage at Continental Plaza,
provided that the cost of such renovation or demolition and reconstruction
shall not exceed $20,000,000.00, and for the construction of the Frost Bank
Garage in Austin, Texas. Nothing herein shall prohibit the Borrower or any
Subsidiary from acquiring Real Estate which has been developed and initially
leased by another Person.
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Section 8.10. Investment Opportunities. During the term of the
Non-Competition Agreements, the Borrower shall cause each of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ to offer to the Borrower all real
estate investment opportunities that are presented to any of such individuals,
and if the Borrower elects not to participate in such opportunity, the Borrower
shall not permit any of such individuals, or any Person controlling, controlled
by or under common control with any of such individuals, to participate in such
investment, unless such transaction is approved by a majority of the
independent directors of Guarantor as permitted in the Non-Competition
Agreements.
Section 8.11. Refinancing of Assets. No asset of the Borrower or its
Subsidiaries shall be financed or refinanced unless the gross proceeds
therefrom equal or exceed fifty-five percent (55%) of the original acquisition
cost by Borrower or such Subsidiary of such asset; provided that such
percentage shall be reduced to forty percent (40%) for hotel/resort assets.
Section 8.12. Variable Rate Debt.
(a) Borrower shall not permit all or any portion of the Existing
Fixed Rate Indebtedness to be refinanced or otherwise replaced by
Indebtedness (i) which has a Variable Interest Rate (unless such Variable
Interest Rate is hedged or otherwise capped pursuant to an interest rate
swap, cap or other agreement acceptable to the Agent that provides that
such Variable Interest Rate shall not through the maturity date of such
Indebtedness exceed a rate equal to the sum of (x) the then-current yield
on obligations of the United States Treasury having a maturity date the
same as (to the extent practicable) such Indebtedness, determined by the
Agent as of the date of the incurrence of such Indebtedness, plus (y)
three percent (3.0%), or (ii) has a scheduled maturity date which is
earlier than the maturity date with respect to the portion of the Existing
Fixed Rate Indebtedness that is being refinanced or replaced, or (iii)
which provides for any principal amortization or other scheduled payments
of principal, other than the payment of principal at maturity.
(b) Notwithstanding Section 8.12(a)(i), no more than thirty percent
(30%) of the total Indebtedness (excluding Indebtedness described in
Section 8.1(b)-(e), but including the Obligations) of Borrower and its
Consolidated Subsidiaries may be Indebtedness that is payable with respect
to a Variable Interest Rate that is not hedged or otherwise capped as
described in Section 8.12(a)(i).
Section 8.13. Restriction on Prepayment of Indebtedness. The Borrower
shall not prepay the principal amount, in whole or in part, of any Indebtedness
other than the Obligations after the occurrence of any Event of Default;
provided, however, that this Section 8.13 shall not prohibit the prepayment of
Indebtedness which is financed solely from the proceeds of a new loan which
would otherwise be permitted by the terms of Section 8.1.
Section 8.14. Bankruptcy Remote Subsidiaries. Without the prior written
consent of the Majority Banks, Borrower shall not create any new single
purpose, special purpose or other so-called bankruptcy remote subsidiaries
(such as a REMIC), as determined by the Agent in its reasonable discretion,
other than in connection with the acquisition of the Behavioral Healthcare
Facilities (provided that its debt shall not exceed $350,000,000.00).
Section 8.15. Magellan Transaction. Without the prior written consent of
the Majority Banks, the Borrower will not materially modify or alter the terms
or structure of its transaction with Magellan and CBHS as contained in (i) the
Sale Agreement; (ii) that certain Warrant Purchase Agreement dated January 29,
1997 between the Borrower and Magellan; and (iii) any and all other agreements,
documents and instruments relating to the acquisition of the Behavioral
Healthcare Facilities by the Borrower.
SECTION 9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans it will comply
with the following:
Section 9.1. Liabilities to Worth Ratio. The Borrower will not permit
the ratio of Consolidated Total Liabilities to Consolidated Tangible Net Worth
of the Borrower to exceed 1 to 1.
Section 9.2. Debt Service Coverage. The Borrower will not permit the
Consolidated Cash Flow of the Borrower and its Subsidiaries for any period of
four consecutive fiscal quarters (treated as a single accounting period) (the
"Test Period") to be less than 2.5 times the Debt Service of the Borrower and
its Subsidiaries for the Test Period.
Section 9.3. Intentionally Omitted.
Section 9.4. Tangible Net Worth. Borrower will not permit its Consolidated
Tangible Net Worth (as adjusted pursuant to Section 9.9) to be less than
$1,000,000,000.00 plus seventy percent (70%) of the net proceeds from each
Equity Offering subsequent to the date hereof.
Section 9.5. Secured Debt to Assets Ratio. The Borrower will not permit
the ratio of the Secured Indebtedness of the Borrower and its Subsidiaries to
the Consolidated Total Assets of the Borrower and its Subsidiaries to exceed
.40 to 1.
Section 9.6. Fixed Charge Coverage. Borrower will not permit the
Consolidated Cash Flow for the Test Period to be less than 2 times the Fixed
Charges of the Borrower and its Subsidiaries for the Test Period.
Section 9.7. Total Liabilities. The Borrower shall not permit the
Consolidated Total Liabilities of the Borrower and its Subsidiaries to be
greater than 5 times the Consolidated Cash Flow of the Borrower and its
Subsidiaries. In the event that a parcel of Real Estate has only been owned by
the Borrower or a Subsidiary for a portion of the period for which data is
needed to test compliance with this covenant, the Borrower shall annualize the
data which is available in such
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manner as the Agent determines in its sole discretion so as to allow the test
to be performed with respect to the full period.
Section 9.8. Real Estate Assets. The Borrower shall not permit (i) the
ratio of the Modified Book Asset Value of its direct and indirect interests in
non-income producing land assets and mortgages secured by non-income producing
land to the Consolidated Total Assets of the Borrower and its Subsidiaries to
exceed .05 to 1 ; (ii) the ratio of the Modified Book Asset Value of its direct
and indirect interests in hotels/resorts to the Consolidated Total Assets of
the Borrower and its Subsidiaries to exceed .20 to 1; (iii) the ratio of the
Modified Book Asset Value of its direct and indirect interests in behavioral
healthcare facilities to the Consolidated Total Assets of the Borrower and its
Subsidiaries to exceed .20 to 1; and (iv) the ratio of the Modified Book Asset
Value of its direct and indirect interests in Class A institutional quality
office buildings to the Consolidated Total Assets of the Borrower and its
Subsidiaries to be less than .60 to 1. For the purposes of this Section 9.8(a),
the interest of Spectrum Mortgage Associates, L.P. in the land at the project
commonly known as Spectrum Center shall be excluded from the calculation in (i)
above.
Section 9.9. Value Adjustment. The Borrower and the Banks have agreed to a
one-time market value adjustment increase in the amount of $63,500,000.00 to
the value of the assets of the Borrower as of the date of this Agreement, and
the financial covenants set forth in Section 9.1, Section 9.4, Section 9.5 and
Section 9.8 (including without limitation the Borrower's Consolidated Tangible
Net Worth and the value of the Borrower's Consolidated Total Assets) shall for
the term of this Agreement be tested against the market value of the Borrower's
assets, based on such one-time market value adjustment, plus all real estate
depreciation to such assets since the date of the Borrower's initial public
offering.
Section 9.10. CBHS. The Borrower will not permit the Consolidated Cash
Flow of CBHS for the Test Period to be less than (i) 2 times the Rent Payments
payable to the Borrower for the Test Period, and (ii) 1.75 times the sum of the
Rent Payments payable to the Borrower for the Test Period plus the Required
Behavioral Healthcare Facilities Capital Expenditures for the Test Period. In
the event that data needed to test compliance with this covenant is not
available for a portion of the Test Period, the Borrower shall annualize the
data which is available in such manner as the Agent determines in its sole
discretion so as to allow the test to be performed with respect to the full
Test Period. For the purpose of testing compliance with this covenant, the
Consolidated Cash Flow of CBHS shall be calculated without deduction for
franchise fees payable by CBHS to Magellan.
Section 9.11. Unencumbered Operating Properties. The Borrower shall at all
times own Unencumbered Operating Properties with an aggregate Asset Value of at
least one hundred fifty percent (150%) of the Borrower's unsecured Indebtedness
(including without limitation the Obligations) outstanding from time to time.
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SECTION 10. CLOSING CONDITIONS.
The obligations of the Agent and the Banks to make the initial Loans shall
be subject to the satisfaction of the following conditions precedent on or
prior to June 6, 1997:
Section 10.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance reasonably satisfactory to
the Majority Banks in their good faith determination. The Agent shall have
received a fully executed copy of each such document, except that each Bank
shall have received a fully executed counterpart of its Note.
Section 10.2. Certified Copies of Organizational Documents. The Agent
shall have received from the Borrower a copy, certified as of a recent date by
the appropriate officer of each State in which the Borrower, the General
Partner or Guarantor, as applicable, is organized or in which the Real Estate
is located and a duly authorized partner or officer of such Person, as
applicable, to be true and complete, of the partnership agreement or corporate
charter of the Borrower, the General Partner or such Guarantor, as applicable,
or its qualification to do business, as applicable, as in effect on such date
of certification.
Section 10.3. Bylaws; Resolutions. All action on the part of the Borrower,
the General Partner and the Guarantor necessary for the valid execution,
delivery and performance by the Borrower, the General Partner and the Guarantor
of this Agreement and the other Loan Documents to which such Person is or is to
become a party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Agent shall have been provided to the Agent. The Agent
shall have received from the General Partner and Guarantor true copies of their
respective bylaws and the resolutions adopted by their respective board of
directors authorizing the transactions described herein, each certified by its
secretary as of a recent date to be true and complete.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent shall
have received from the General Partner and Guarantor an incumbency certificate,
dated as of the Closing Date, signed by a duly authorized officer of the
General Partner and Guarantor and giving the name and bearing a specimen
signature of each individual who shall be authorized to sign, in the name and
on behalf of the General Partner and Guarantor, each of the Loan Documents to
which such Person is or is to become a party. The Agent shall have also
received from the Borrower a certificate, dated as of the Closing Date, signed
by a duly authorized partner of the Borrower and giving the name and specimen
signature of each individual who shall be authorized to make Loan and
Conversion Requests, and give notices and to take other action on behalf of the
Borrower under the Loan Documents.
Section 10.5. Opinion of Counsel. The Agent shall have received a
favorable opinion addressed to the Banks and the Agent and dated as of the
Closing Date, in form and substance reasonably satisfactory to the Agent, from
counsel of the Borrower, the General Partner and the Guarantor (a) stating that
all Loan Documents have been duly authorized, executed and delivered by
Borrower and Guarantor are valid, binding and enforceable against Borrower and
Guarantor
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including, without limitation, the choice of law provisions of the Loan
Documents, (b) indicating the due organization, legal existence and good
standing of Borrower, General Partner and Guarantor in the state of its
formation, (c) stating that the Loan is not usurious under Massachusetts law
(without resort to any "usury savings" clause in the Loan Documents), (d)
stating that to Borrower's counsel's current actual knowledge there is no
material action, suit or proceeding pending or threatened against or affecting
Borrower, General Partner and Guarantor before any court, administrative
agency, arbitrator or governmental authority, and (e) such other matters as are
reasonably requested by Agent's Special Counsel.
Section 10.6. Payment of Fees. The Borrower shall have paid to BankBoston
the fees required to be paid pursuant to Section 4.2.
Section 10.7. Performance; No Default. The Borrower shall have performed
and complied with all terms and conditions herein required to be performed or
complied with by it on or prior to the Closing Date, and on the Closing Date
there shall exist no Default or Event of Default.
Section 10.8. Representations and Warranties. The representations and
warranties made by the Borrower, the General Partner and the Guarantor in the
Loan Documents or otherwise made by or on behalf of the Borrower, the General
Partner, the Guarantor or the Borrower's Subsidiaries in connection therewith
or after the date thereof shall have been true and correct in all material
respects when made and shall also be true and correct in all material respects
on the Closing Date.
Section 10.9. Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Agent and the Agent's Special
Counsel in form and substance, and the Agent shall have received all
information and such counterpart originals or certified copies of such
documents and such other certificates, opinions or documents as the Agent and
the Agent's Special Counsel may reasonably require.
Section 10.10. Intentionally Omitted.
Section 10.11. Compliance Certificate. A Compliance Certificate and a
Guarantor's Compliance Certificate dated as of the date of the Closing Date
demonstrating compliance with each of the covenants calculated therein as of
the most recent fiscal quarter end for which the Borrower or Guarantor has
provided financial statements under Section 6.4 or the Guaranty, as applicable,
adjusted in the best good faith estimate of the Borrower or Guarantor, as
applicable, dated as of the date of the Closing Date shall have been delivered
to the Agent.
Section 10.12. Real Estate Spreadsheet. The Agent shall have received the
spreadsheet on the Real Estate described in Section 6.4 above.
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Section 10.13. Other. The Agent shall have reviewed such other documents,
instruments, certificates, opinions, assurances, consents and approvals as the
Agent or the Agent's Special Counsel may reasonably have requested.
SECTION 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
Section 11.1. Prior Conditions Satisfied. All conditions set forth in
Section 10 shall continue to be satisfied as of the date upon which any Loan is
to be made.
Section 11.2. Representations True; No Default. Each of the
representations and warranties made by or on behalf of the Borrower, the
General Partner, the Guarantor and the Borrower's Subsidiaries contained in
this Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with this Agreement shall be true as of
the date as of which they were made and shall also be true at and as of the
time of the making of such Loan, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and except to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
Section 11.3. No Legal Impediment. No change shall have occurred in any
law or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Bank would make it illegal for such Bank to make such Loan.
Section 11.4. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
Section 11.5. Proceedings and Documents. All proceedings in connection
with the Loan shall be satisfactory in substance and in form to the Majority
Banks, and the Majority Banks shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Majority Banks may reasonably request.
Section 11.6. Borrowing Documents. In the case of any request for a Loan,
the Agent shall have received a copy of each of the following:
11.6.1. the request for a Loan required by Section 2.6 in the form of
Exhibit I hereto, fully completed; and
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11.6.2. the Compliance Certificate and the Guarantor's Compliance
Certificate required by clauses (iii) and (iv) of Section 2.6 prepared in
a manner reasonably acceptable to the Agent.
SECTION 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. Events of Default and Acceleration. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults")
shall occur:
12.1.1. the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed
for payment;
12.1.2. the Borrower shall fail to pay any interest on the Loans or
any other sums due hereunder or under any of the other Loan Documents,
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed
for payment;
12.1.3. the Borrower shall fail to comply with any covenant contained
in Section 7.17;
12.1.4. the Borrower shall fail to comply with any covenant contained
in Section 9, and such failure shall continue for 30 days after written
notice thereof shall have been given to the Borrower by the Agent;
12.1.5. the Borrower or any of its Subsidiaries or the Guarantor
shall fail to perform any other term, covenant or agreement contained
herein or in any of the other Loan Documents (other than those specified
above in this Section 12);
12.1.6. any representation or warranty made by or on behalf of the
Borrower, its General Partner, the Guarantor or any of the Borrower's
Subsidiaries in this Agreement or any other Loan Document, report,
certificate, financial statement, request for a Loan, or in any other
document or instrument delivered pursuant to or in connection with this
Agreement, any advance of a Loan or any of the other Loan Documents shall
prove to have been false in any material respect upon the date when made
or deemed to have been made or repeated;
12.1.7. the Borrower, any of its general partners, the Guarantor or
any of the Borrower's Subsidiaries shall fail to pay at maturity, or
within any applicable period of grace, any obligation for borrowed money
or credit received, or fail to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing any such borrowed money or credit received for such
period of time as would permit (assuming the giving of appropriate notice
if required) the
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holder or holders thereof or of any obligations issued thereunder to
accelerate the maturity thereof;
12.1.8. the Borrower, any of its general partners, the Guarantor or
any of the Borrower's Subsidiaries, (1) shall make an assignment for the
benefit of creditors, or admit in writing its general inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower, any of its general partners, the
Guarantor or any of the Borrower's Subsidiaries or of any substantial part
of the assets of any thereof, (2) shall commence any case or other
proceeding relating to the Borrower, any of its general partners, the
Guarantor or any of the Borrower's Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or (3) shall take any action to authorize or in furtherance of any
of the foregoing;
12.1.9. a petition or application shall be filed for the appointment
of a trustee or other custodian, liquidator or receiver of the Borrower,
any of its general partners, the Guarantor or any of the Borrower's
Subsidiaries or any substantial part of the assets of any thereof, or a
case or other proceeding shall be commenced against the Borrower, any of
its general partners, the Guarantor or any of the Borrower's Subsidiaries
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, and the Borrower, any of its
general partners, the Guarantor or any of the Borrower's Subsidiaries
shall indicate its approval thereof, consent thereto or acquiescence
therein or such petition, application, case or proceeding shall not have
been dismissed within 90 days following the filing or commencement
thereof;
12.1.10. a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower, any of its
general partners, the Guarantor or any of the Borrower's Subsidiaries
bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of the
Borrower, any of its general partners, the Guarantor or any of the
Borrower's Subsidiaries, in an involuntary case under federal bankruptcy
laws as now or hereafter constituted;
12.1.11. there shall remain in force, undischarged, unsatisfied and
unstayed, for more than 60 days, whether or not consecutive, any uninsured
final judgment against the Borrower, any of its general partners, the
Guarantor or any of the Borrower's Subsidiaries that, with other
outstanding uninsured final judgments, undischarged, against the Borrower,
any of its general partners, the Guarantor or any of the Borrower's
Subsidiaries exceeds in the aggregate $10,000,000.00;
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12.1.12. if any of the Loan Documents shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof
or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents shall be commenced by
or on behalf of the Borrower, any of its general partners, the Guarantor,
any of the Borrower's Subsidiaries or any of their respective
stockholders, partners or beneficiaries, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or
ruling to the effect that, any one or more of the Loan Documents is
illegal, invalid or unenforceable in accordance with the terms thereof;
12.1.13. any dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower, any of its general
partners or the Guarantor, or any sale, transfer or other disposition of
the assets of the Borrower, any of its general partners or the Guarantor,
other than as permitted under the terms of this Agreement or the other
Loan Documents;
12.1.14. any suit or proceeding shall be filed against the Borrower,
the Guarantor or any of their respective assets, which in the good faith
business judgment of the Majority Banks after giving consideration to the
likelihood of success of such suit or proceeding and the availability of
insurance to cover any judgment with respect thereto and based on the
information available to them, if adversely determined, would have a
materially adverse affect on the ability of the Borrower or the Guarantor
to perform each and every one of its respective obligations under and by
virtue of the Loan Documents;
12.1.15. the Borrower, any of its general partners, the Guarantor or
any of the Borrower's or the Guarantor's Subsidiaries shall be indicted
for a federal crime, a punishment for which could include the forfeiture
of any assets of such Person;
12.1.16. with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could
be expected to result in liability of the Borrower, any of its general
partners, the Guarantor or any of the Borrower's Subsidiaries to the PBGC
or such Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and such event in the circumstances occurring reasonably could
constitute grounds for the termination of such Guaranteed Pension Plan by
the PBGC or for the appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed Pension Plan; or a
trustee shall have been appointed by the United States District Court to
administer such Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
12.1.17. the Guarantor denies that it has any liability or obligation
under the Guaranty, or shall notify the Agent or any of the Banks of the
Guarantor's intention to
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attempt to cancel or terminate the Guaranty, or shall fail to observe or
comply with any term, covenant, condition or agreement under the Guaranty;
12.1.18. (1) at least two of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not collectively occupy two of the following
positions: Chairman of the Board, Chief Executive Officer, Vice-Chairman
and President of Guarantor, or (2) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the aggregate shall no longer own units in the Borrower
or shares in Guarantor which, on a combined basis, equal to at least a ten
percent (10%) economic interest in the Borrower (provided, however, in the
event that the circumstances described in (1) or (2) have occurred as a
result of the death or mental incapacity of any of such Persons, the same
shall not constitute an Event of Default hereunder so long as within six
(6) months from the date of such death or mental incapacitation the
Majority Banks shall have approved the individual or individuals who shall
replace such Person as the Chairman of the Board, Chief Executive Officer,
Vice-Chairman or President, as applicable, of Guarantor and who shall own
such interests in the Borrower and Guarantor), or (3) without the prior
written approval of the Majority Banks there shall be any other material
change in the management of Guarantor or the Borrower; or
12.1.19. any default or Event of Default, as defined in any of the
other Loan Documents, shall occur;
then, and in any such event, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the Borrower declare all amounts
owing with respect to this Agreement, the Notes and the other Loan Documents to
be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; provided that in the event of any
Event of Default specified in Section 12.1(h), Section 12.1(i) or Section
12.1(j), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from any of the Banks or
the Agent.
Section 12.2. Limitation of Cure Periods.
(a) Notwithstanding anything contained in Section 12.1 to the
contrary, (i) no Event of Default shall exist hereunder upon the
occurrence of any failure described in Section 12.1(a) or Section 12.1(b)
in the event that the Borrower cures such default within five (5) days
following receipt of written notice of such default, provided, however,
that Borrower shall not be entitled to receive more than two (2) notices
in the aggregate pursuant to this clause (i) in any period of 365 days
ending on the date of any such occurrence of default, and provided further
that no such cure period shall apply to any payments due upon the maturity
of the Notes, and (ii) no Event of Default shall exist hereunder upon the
occurrence of any failure described in Section 12.1(e) in the event that
the Borrower cures such default with thirty (30) days following receipt of
written notice of such default, provided that the provisions of this
clause shall not pertain to defaults consisting of a failure to
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comply with Section 7.4(d) or to any default excluded from any provision
of cure of defaults contained in any other of the Loan Documents.
(b) Notwithstanding the provisions of Section 12.1(d), the cure
period provided therein shall not be allowed and the occurrence of a
Default thereunder immediately shall constitute an Event of Default for
all purposes of this Agreement and the other Loan Documents if, within the
period of twelve months immediately preceding the occurrence of such
Default, there shall have occurred two periods of cure or portions thereof
under said subsection.
Section 12.3. Termination of Commitments. If any one or more Events of
Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j) shall
occur, then immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and the Banks
shall be relieved of all obligations to make Loans to the Borrower. If any
other Event of Default shall have occurred, the Agent, upon the election of the
Majority Banks, may by notice to the Borrower terminate the obligation to make
Loans to the Borrower. No termination under this Section 12.3 shall relieve the
Borrower of its obligations to the Banks arising under this Agreement or the
other Loan Documents. Nothing in this Section 12.3 shall limit or impair the
terms of this Agreement (including Section 2.1) which provide that the Banks
shall have no obligation to make Loans upon the occurrence of a Default or
Event of Default.
Section 12.4. Remedies. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Banks, may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced, including to the full extent permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right. No remedy herein conferred upon
the Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law. In the event that all or
any portion of the Obligations is collected by or through an attorney-at-law,
the Borrower shall pay all reasonable costs of collection including, but not
limited to, reasonable attorney's fees.
Section 12.5. Distribution of Proceeds. In the event that, following the
occurrence or during the continuance of any Event of Default, any monies are
received in connection with the enforcement of any of the Loan Documents, or
otherwise with respect to the realization upon any of the assets of the
Borrower or the Guarantor, such monies shall be distributed for application as
follows:
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12.5.1. First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent to protect or preserve any collateral or in
connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the
rights, remedies, powers and privileges of the Agent under this Agreement
or any of the other Loan Documents or in support of any provision of
adequate indemnity to the Agent against any taxes or liens which by law
shall have, or may have, priority over the rights of the Agent to such
monies;
12.5.2. Second, to all other Obligations in such order or preference
as the Majority Banks shall determine; provided, however, that (i)
distributions in respect of such other Obligations shall be made pari
passu among Obligations with respect to the Agent's fee payable pursuant
to Section 4.3 and all other Obligations, (ii) in the event that any Bank
shall have wrongfully failed or refused to make an advance under Section
2.7 and such failure or refusal shall be continuing, advances made by
other Banks during the pendency of such failure or refusal shall be
entitled to be repaid as to principal and accrued interest in priority to
the other Obligations described in this subsection (b), and (iii)
Obligations owing to the Banks with respect to each type of Obligation
such as interest, principal, fees and expenses, shall be made among the
Banks pro rata; and provided further that the Majority Banks may in their
discretion make proper allowance to take into account any Obligations not
then due and payable; and
12.5.3. Third, the excess, if any, shall be returned to the Borrower
or to such other Persons as are entitled thereto.
SECTION 13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of where
such deposits are held) or other sums credited by or due from any of the Banks
to the Borrower or the Guarantor and any securities or other property of the
Borrower or the Guarantor in the possession of such Bank may be applied to or
set off against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrower to such Bank. Each of the Banks agrees
with each other Bank that if such Bank shall receive from the Borrower or the
Guarantor, whether by voluntary payment, exercise of the right of setoff, or
otherwise, and shall retain and apply to the payment of the Note or Notes held
by such Bank any amount in excess of its ratable portion of the payments
received by all of the Banks with respect to the Notes held by all of the
Banks, such Bank will make such disposition and arrangements with the other
Banks with respect to such excess, either by way of distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such
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disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
SECTION 14. THE AGENT.
Section 14.1. Authorization. The Agent is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated
to the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent. The obligations of
Agent hereunder are primarily administrative in nature, and nothing contained
in this Agreement, or any of the other Loan Documents shall be construed to
constitute the Agent as a trustee for any Bank or to create an agency or
fiduciary relationship. The Borrower and any other Person shall be entitled to
conclusively rely on a statement from the Agent that it has the authority to
act for and bind the Banks pursuant to this Agreement and the other Loan
Documents.
Section 14.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrower.
Section 14.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent, or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, shall be liable for losses due to its willful
misconduct or gross negligence.
Section 14.4. No Representations. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any
of the other Loan Documents or any instrument at any time constituting, or
intended to constitute, collateral security for the Notes, or for the value of
any such collateral security or for the validity, enforceability or
collectibility of any such amounts owing with respect to the Notes, or for any
recitals or statements, warranties or representations made herein, or any
agreement, instrument or certificate delivered in connection therewith or in
any of the other Loan Documents or in any certificate or instrument hereafter
furnished to it by or on behalf of the Borrower or any of its Subsidiaries or
the Guarantor, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or
in any other of the Loan Documents. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to it by the Borrower
or the Guarantor or any of their respective Subsidiaries or any holder of any
of the Notes shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it
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now make any representations or warranties, express or implied, nor does it
assume any liability to the Banks, with respect to the creditworthiness or
financial condition of the Borrower or any of its Subsidiaries or the
Guarantor. Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank, and based upon such information and
documents 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 Agent or any other Bank,
based upon such information and documents as it deems appropriate at the time,
continue to make its own credit analysis and decisions in taking or not taking
action under this Agreement and the other Loan Documents.
Section 14.5. Payments.
14.5.1. A payment by the Borrower or the Guarantor to the Agent
hereunder or under any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees to
distribute to each Bank not later than one Business Day after the Agent's
receipt of good funds, determined in accordance with the Agent's customary
practices, such Bank's pro rata share of payments received by the Agent
for the account of the Banks except as otherwise expressly provided herein
or in any of the other Loan Documents. In the event that the Agent fails
to distribute such amounts within one Business Day as provided above, the
Agent shall pay interest on such amount at a rate per annum equal to the
Federal Funds Effective Rate from time to time in effect.
14.5.2. If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any of
the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have
been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay
over the same in such manner and to such Persons as shall be determined by
such court.
14.5.3. Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to
comply with the provisions of Section 13 with respect to making
dispositions and arrangements with the other Banks, where such Bank's
share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of
the Banks, in each case as, when and to the full extent required by the
provisions of this Agreement, shall be deemed delinquent (a "Delinquent
Bank") and shall be deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower and the
Guarantor, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Banks for
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application to, and reduction of, their respective pro rata shares of all
outstanding Loans. The Delinquent Bank hereby authorizes the Agent to
distribute such payments to the nondelinquent Banks in proportion to their
respective pro rata shares of all outstanding Loans. A Delinquent Bank
shall be deemed to have satisfied in full a delinquency when and if, as a
result of application of the assigned payments to all outstanding Loans of
the nondelinquent Banks or as a result of other payments by the Delinquent
Banks to the nondelinquent Banks, the Banks' respective pro rata shares of
all outstanding Loans have returned to those in effect immediately prior
to such delinquency and without giving effect to the nonpayment causing
such delinquency.
Section 14.6. Holders of Notes. Subject to the terms of Article 18, the
Agent may deem and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee
or transferee.
Section 14.7. Indemnity. The Banks ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and character arising
out of or related to this Agreement, the Notes or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or thereunder, except to the extent that
any of the same shall be directly caused by the Agent's willful misconduct or
gross negligence.
Section 14.8. Agent as Bank. In its individual capacity, BankBoston shall
have the same obligations and the same rights, powers and privileges in respect
to its Commitment and the Loans made by it, and as the holder of any of the
Notes as it would have were it not also the Agent.
Section 14.9. Resignation. Subject to the terms of Section 18.1, the Agent
may resign at any time by giving 30 calendar days' prior written notice thereof
to the Banks and the Borrower. Upon any such resignation, the Majority Banks,
subject to the terms of Section 18.1, shall have the right to appoint as a
successor Agent any Bank or any bank whose senior debt obligations are rated
not less than "A" or its equivalent by ▇▇▇▇▇'▇ Investors Service, Inc. or not
less than "A" or its equivalent by Standard & Poor's corporation and which has
a net worth of not less than $500,000,000. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been appointed and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a bank whose debt
obligations are rated not less than "A" or its equivalent by ▇▇▇▇▇'▇ Investors
Service, Inc. or not less than "A" or its equivalent by Standard & Poor's
Corporation and which has a net worth of not less than $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights,
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powers, privileges and duties of the retiring or removed Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder as
Agent. After any retiring Agent's resignation, the provisions of this Agreement
and the other Loan Documents shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Agent. Upon any change in the Agent under this Agreement, the resigning
Agent shall execute such assignments of and amendments to the Loan Documents as
may be necessary to substitute the successor Agent for the resigning Agent.
Section 14.10. Duties in the Case of Enforcement. In case one or more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if (a) so
requested by the Majority Banks and (b) the Banks have provided to the Agent
such additional indemnities and assurances against expenses and liabilities as
the Agent may reasonably request, proceed to exercise all or any legal and
equitable and other rights or remedies as it may have. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such
exercise, the Banks hereby agreeing to indemnify and hold the Agent harmless
from all liabilities incurred in respect of all actions taken or omitted in
accordance with such directions, provided that the Agent need not comply with
any such direction to the extent that the Agent reasonably believes the Agent's
compliance with such direction to be unlawful or commercially unreasonable in
any applicable jurisdiction.
SECTION 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) except as otherwise specifically provided
herein, any taxes (including any interest and penalties in respect thereto)
payable by the Agent or any of the Banks, including any recording, mortgage,
documentary or intangibles taxes in connection with the Loan Documents, or
other taxes payable on or with respect to the transactions contemplated by this
Agreement (other than taxes based upon the Agent's or any Bank's gross or net
income), (c) the reasonable fees, expenses and disbursements of the counsel to
the Agent and any local counsel to the Agent incurred in connection with the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein (excluding, however, the preparation of agreements
evidencing participations granted under Section 18.4), each closing hereunder,
and amendments, modifications, approvals, consents or waivers hereto or
hereunder (it being understood and agreed that the Borrower shall pay to the
Agent for the account of the Banks a fee in the amount of $10,000.00 for each
material amendment or waiver (as determined by the Agent in its sole
discretion) requested by Borrower and granted by the Agent or the Banks, with
such fee to be split equally among the Banks), (d) the reasonable fees,
expenses and disbursements of the Agent incurred by the Agent in connection
with the preparation, administration or interpretation of the Loan Documents
and other instruments mentioned herein, and the making of each advance
hereunder, (e) all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and costs, which attorneys may be employees of any Bank or the
Agent and the fees and costs of appraisers, engineers, investment bankers or
other experts retained by any Bank or the Agent) incurred by any Bank or the
Agent in connection with (i) the
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enforcement of or preservation of rights under any of the Loan Documents
against the Borrower, any of its general partners or the Guarantor or the
administration thereof after the occurrence of a Default or Event of Default
and (ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Agent's or any of the Bank's relationship
with the Borrower, any of its general partner, the Guarantor or any of their
respective Subsidiaries unless the Borrower, such general partner, such
Guarantor or such Subsidiary is the prevailing party in such litigation,
proceeding or dispute, and (f) all reasonable fees, expenses and disbursements
of the Agent incurred in connection with UCC searches, UCC filings, title
rundowns, title searches or mortgage recordings. The covenants of this Section
15 shall survive payment or satisfaction of payment of amounts owing with
respect to the Notes.
SECTION 16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent and the Banks
and each director, officer, employee, agent and Person who controls the Agent
or any Bank from and against any and all claims, actions and suits, whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of or relating
to this Agreement or any of the other Loan Documents or the transactions
contemplated hereby and thereby including, without limitation, (a) any leasing
fees and any brokerage, finders or similar fees asserted against any Person
indemnified under this Section 16 based upon any agreement, arrangement or
action made or taken, or alleged to have been made or taken, by the Borrower,
any of its general partners, the Guarantor or any of the Borrower's
Subsidiaries (provided that the Borrower shall not be required to indemnify a
Bank from and against any agreement that is proven to have been made by a Bank
to pay any brokerage fees or commissions), (b) any condition of the Real Estate
first occurring prior to the Agent or the Banks or their nominee acquiring
title to the applicable Real Estate by the exercise of any applicable
foreclosure remedies or by deed in lieu of foreclosure, (c) any actual or
proposed use by the Borrower of the proceeds of any of the Loans, (d) any
actual or alleged infringement of any patent, copyright, trademark, service
▇▇▇▇ or similar right of the Borrower, any of its general partners, the
Guarantor or any of the Borrower's Subsidiaries, (e) the Borrower, the
Guarantor or any Subsidiary of the Borrower entering into or performing this
Agreement or any of the other Loan Documents, (f) any actual or alleged
violation of any law, ordinance, code, order, rule, regulation, approval,
consent, permit or license relating to the Real Estate which violation first
occurred prior to the Agent or the Banks or their nominee acquiring title to
the applicable Real Estate by the exercise of any applicable foreclosure
remedies or by deed in lieu of foreclosure, or (g) with respect to the
Borrower, each of its general partners, the Guarantor, the Borrower's
Subsidiaries and their respective properties and assets, the violation of any
Environmental Law, the Release or threatened Release of any Hazardous
Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to claims with respect to wrongful death, personal injury or damage to
property), first occurring prior to the Agent or the Banks or their nominee
acquiring title to the applicable Real Estate by the exercise of any applicable
foreclosure remedies or by deed in lieu of foreclosure, in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation
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or other proceeding; provided, however, that the Borrower shall not be
obligated under this Section 16 to indemnify any Person for liabilities arising
from such Person's own gross negligence or willful misconduct. In litigation,
or the preparation therefor, the Banks and the Agent shall be entitled to
select a single law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this Section 16 are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The provisions of this
Section 16 shall survive the repayment of the Loans and the termination of the
obligations of the Banks hereunder.
SECTION 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, any of its general partners,
the Guarantor or any of the Borrower's Subsidiaries pursuant hereto or thereto
shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of any of the Loans, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Agreement or the Notes or any of the other Loan Documents
remains outstanding or any Bank has any obligation to make any Loans. The
indemnification obligations of the Borrower provided herein and the other Loan
Documents shall survive the full repayment of amounts due and the termination
of the obligations of the Banks hereunder and thereunder to the extent provided
herein and therein. All statements contained in any certificate or other paper
delivered to any Bank or the Agent at any time by or on behalf of the Borrower,
any of its general partners, the Guarantor or any of the Borrower's
Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the
Borrower, its general partners, the Guarantor or such Subsidiary hereunder.
SECTION 18. ASSIGNMENT AND PARTICIPATION.
Section 18.1. Conditions to Assignment by Banks. Except as provided
herein, each Bank may assign to one or more banks or other entities all or a
portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld (provided that
such consent shall not be required for any assignment to another Bank or to a
wholly-owned subsidiary of such Bank provided that such assignee shall remain a
wholly-owned subsidiary of such Bank), (b) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as hereinafter
defined), a notice of such assignment, together with any Notes subject to such
assignment, (d) in no event shall any voting, consent or approval rights
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of a Bank be assigned to any Person controlling, controlled by or under common
control with, or which is not otherwise free from influence or control by, the
Borrower, any of its general partners, the Guarantor or their respective
Subsidiaries, which rights shall instead be allocated pro rata among the other
remaining Banks, (e) such assignee shall have a net worth as of the date of
such assignment of not less than $500,000,000 unless such requirement is waived
in writing by the Borrower and the Agent, (f) such assignment is subject to the
terms of any intercreditor agreement among the Banks and the Agent, and (g)
such assignee shall acquire an interest in the Loans of not less than
$10,000,000.00. Upon such execution, delivery, acceptance and recording, of
such notice of assignment, (i) the assignee thereunder shall be a party hereto
and all other Loan Documents executed by the Banks and, to the extent provided
in such assignment, have the rights and obligations of a Bank hereunder, (ii)
the assigning Bank shall, to the extent provided in such assignment and upon
payment to the Agent of the registration fee referred to in Section 18.2, be
released from its obligations under this Agreement, and (iii) the Agent may
unilaterally amend Schedule 1 to reflect such assignment. In connection with
each assignment, the assignee shall represent and warrant to the Agent, the
assignor and each other Bank as to whether such assignee is controlling,
controlled by, under common control with or is not otherwise free from
influence or control by, the Borrower, its general partners, and the Guarantor
or their respective Subsidiaries. Notwithstanding anything herein to the
contrary, in the event that BankBoston shall at any time hold a Commitment
equal to or less than $20,000,000.00 then BankBoston shall first provide
written notice thereof to the Banks and shall offer to resign as Agent, which
offer must be accepted in writing by the Majority Banks within fifteen (15)
days of delivery of such notice by Agent (for the purposes of this sentence
only BankBoston shall be deemed to have accepted its own offer to resign). A
failure to accept such offer within such period shall be deemed a rejection of
such offer. NationsBank shall have a period of fifteen (15) calendar days
following the acceptance by the Majority Banks of BankBoston's offer to resign
within which to elect to replace BankBoston as Agent (provided, however, that
the option of NationsBank to replace BankBoston as Agent shall be null and void
in the event that NationsBank has at such time, without regard to any
assignment to be made by BankBoston, a Commitment which is not greater than or
equal to the Commitment of each other Bank other than BankBoston or in the
event that within such thirty (30) calendar day period the Majority Banks do
not approve NationsBank so acting as Agent). In the event that the Majority
Banks have accepted BankBoston's offer to resign and NationsBank declines to
replace BankBoston as Agent, is not eligible to replace BankBoston as Agent or
is not approved by the Majority Banks as the successor Agent as provided above,
BankBoston shall thereafter resign as Agent as provided in this Agreement in
the event that a successor Agent from among the Banks is not selected by the
Majority Banks or does not accept such appointment within fifteen (15) calendar
days following receipt of notice from Agent that NationsBank has declined to
replace BankBoston as Agent or a determination or vote that NationsBank is
ineligible or not approved. Except with respect to the rights of NationsBank as
provided above to succeed BankBoston as Agent, each Agent, as a condition to
any resignation of its position as Agent shall be required to provide written
notice thereof to the other Banks and provide the Majority Banks an opportunity
to designate a successor Agent within thirty (30) calendar days following
receipt of such notice in the same manner as provided above. Upon any change in
the Agent under this Agreement, the resigning or
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removed Agent shall execute such assignments of and amendments to the Loan
Documents as may be necessary to substitute the successor Agent for the
resigning or removed Agent.
Section 18.2. Register. The Agent shall maintain a copy of each assignment
delivered to it and a register or similar list (the "Register") for the
recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to the Banks from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and the Banks at any reasonable time and from time to time upon reasonable
prior notice. Upon each such recordation, the assigning Bank agrees to pay to
the Agent a registration fee in the sum of $5,000.
Section 18.3. New Notes. Upon its receipt of an assignment executed by the
parties to such assignment, together with each Note subject to such assignment,
the Agent shall (a) record the information contained therein in the Register,
and (b) give prompt notice thereof to the Borrower and the Banks (other than
the assigning Bank). Within five Business Days after receipt of such notice,
the Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such assignee in
an amount equal to the amount assumed by such assignee pursuant to such
assignment and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder, and shall cause the
Guarantor to deliver to the Agent an acknowledgment in form and substance
reasonably satisfactory to the Agent to the effect that the Guaranty extends to
and is applicable to each new Note. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such assignment and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
Section 18.4. Participations. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that
(a) any such sale or participation shall not affect the rights and duties of
the selling Bank hereunder to the Borrower, (b) such participation shall not
entitle such participant to any rights or privileges under this Agreement or
the Loan Documents, including, without limitation, the right to approve
waivers, amendments or modifications, (c) such participant shall have no direct
rights against the Borrower, any of its general partners, the Guarantor or any
of their respective Subsidiaries except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable laws, and (e) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from
influence or control by, the Borrower, any of its general partners, the
Guarantor or any of their respective Subsidiaries.
Section 18.5. Pledge by Bank. Any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve
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Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
Section 18.6. No Assignment by Borrower. The Borrower shall not assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
Section 18.7. Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
Section 18.8. Restrictions on Assignment. Notwithstanding anything in this
Agreement to the contrary, no Bank other than BankBoston shall be permitted to
assign all or any portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment Percentage and
Commitment and the same portion of the Loans at the time owing to it, and the
Notes held by it) or the other Loan Documents prior to the date that is one
hundred eighty days (180) following the Closing Date without the prior written
consent of BankBoston, which consent maybe withheld by BankBoston in its sole
and absolute discretion. Nothing herein shall prevent the sale by a Bank of a
participation pursuant to Section 18.4 of this Agreement during such period.
SECTION 19. NOTICES.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Agreement (hereinafter in this Section 19 referred to as
"Notice"), but specifically excluding to the maximum extent permitted by law
any notices of the institution or commencement of foreclosure proceedings, must
be in writing and shall be deemed to have been properly given or served by
personal delivery or by sending same by overnight courier or by depositing same
in the United States Mail, postpaid and registered or certified, return receipt
requested, or as expressly permitted herein, by telegraph, telecopy, telefax or
telex, and addressed as follows:
If to the Agent or any Bank, at the address set forth on the signature
page for the Agent or such Bank; and
If to the Borrower:
Crescent Real Estate Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: 817/878-0429
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with a copy to:
Crescent Real Estate Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy No.: 817/878-0429
and to each other Bank which may hereafter become a party to this Agreement at
such address as may be designated by such Bank. Each Notice shall be effective
upon being personally delivered or upon being sent by overnight courier or upon
being deposited in the United States Mail as aforesaid. The time period in
which a response to such Notice must be given or any action taken with respect
thereto (if any), however, shall commence to run from the date of receipt if
personally delivered or sent by overnight courier, or if so deposited in the
United States Mail, the earlier of three (3) Business Days following such
deposit or the date of receipt as disclosed on the return receipt. Rejection or
other refusal to accept or the inability to deliver because of changed address
for which no notice was given shall be deemed to be receipt of the Notice sent.
By giving at least fifteen (15) days prior Notice thereof, the Borrower, a Bank
or Agent shall have the right from time to time and at any time during the term
of this Agreement to change their respective addresses and each shall have the
right to specify as its address any other address within the United States of
America.
SECTION 20. RELATIONSHIP.
The relationship between each Bank and the Borrower is solely that of a
lender and borrower, and nothing contained herein or in any of the other Loan
Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lender and
borrower.
SECTION 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 19. THE BORROWER HEREBY WAIVES ANY
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OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR
ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
SECTION 22. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
SECTION 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
SECTION 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to
the transactions contemplated hereby. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
Section 27.
SECTION 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE AGENT AND THE BANKS HEREBY WAIVES ITS RIGHT TO A
JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS Section 25.
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SECTION 26. DEALINGS WITH THE BORROWER.
The Banks and their affiliates may accept deposits from, extend credit to
and generally engage in any kind of banking, trust or other business with the
Borrower, its Subsidiaries or any of their affiliates regardless of the
capacity of the Bank hereunder.
SECTION 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement may be given, and any term of
this Agreement or of any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the Borrower of any terms
of this Agreement or such other instrument or the continuance of any Default or
Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Majority Banks. Notwithstanding the foregoing, none of the
following may occur without the written consent of each Bank: a change in the
rate of interest on and the term of the Notes; except as provided in Section
18, a change in the amount of the Commitments of the Banks; a reduction or
waiver of the principal of any unpaid Loan or any interest thereon; a change in
the amount of any fee payable to a Bank hereunder; an extension of Maturity
Date; the release of the Borrower, the Guarantor, any Subsidiary which has
executed any of the Loan Documents except as otherwise provided herein; any
modification to require a Bank to fund a pro rata share of a request for an
advance of the Loans made by the Borrower other than based on its Commitment
Percentage; a change to this Section 27; any postponement of any date fixed for
any payment of principal of or interest on the Loan; any change in the manner
of distribution of any payments to the Banks or Agent; a change to the
provisions of Section 2.1 which provide that the Banks shall not be required to
make an advance of proceeds of the Loan following a Default or Event of Default
(provided that the foregoing shall not limit the ability of the Majority Banks
to waive a Default or Event of Default or agree to make an advance
notwithstanding such Default of Event of Default); or an amendment of the
definition of Majority Banks or of any requirement for consent by all of the
Banks. The amount of the Agent's fee payable for the Agent's account and the
provisions of Section 14 may not be amended without the written consent of the
Agent. The Borrower agrees to enter into such modifications or amendments of
this Agreement or the other Loan Documents as reasonably may be requested by
BankBoston in connection with the syndication by BankBoston of its Commitment,
provided that no such amendment or modification materially affects or increases
any of the obligations of the Borrower hereunder. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Agent or
any Bank in exercising any right shall operate as a waiver thereof or otherwise
be prejudicial thereto. No notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
SECTION 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction,
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and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
SECTION 29. NO UNWRITTEN AGREEMENTS.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
SECTION 30. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement
and obligation of the Borrower under this Agreement and the other Loan
Documents.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument the date first set forth above.
CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership,
by its sole general partner
By: Crescent Real Estate Equities, Ltd., a
Delaware corporation
By: /s/
----------------------------------
Name:
-----------------------------
Title:
----------------------------
[CORPORATE SEAL]
[Signatures continued on next page]
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BANKBOSTON, N.A., a national banking
association, formerly known as The
First National Bank of Boston,
individually and as Agent
By: /s/
-----------------------------------
Its:
----------------------------------
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: 770/390-8434
and
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Facsimile: 617/434-7108
[Signatures continued on next page]
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NATIONSBANK OF TEXAS, N.A., individually
and as Documentation Agent
By: /s/
-----------------------------------
Its:
----------------------------------
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
NationsBank Plaza
51st Floor
Dallas, Texas 75202
Attn: Real Estate Administration
Facsimile: 214/508-1571
[Signatures continued on next page]
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BANKERS TRUST COMPANY, individually and
as Documentation Agent
By: /s/
-----------------------------------
Its:
----------------------------------
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: 212/669-0752
[Signatures continued on next page]
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FIRST AMERICAN BANK, S.S.B.
By: /s/
-----------------------------------
Its:
----------------------------------
First American Bank, S.S.B.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 214/419-3308
[Signatures continued on next page]
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COMERICA BANK-TEXAS
By: /s/
-----------------------------------
Its:
----------------------------------
Comerica Bank-Texas
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Thanksgiving Tower, 2nd Floor
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 214/979-8383
[Signatures continued on next page]
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KREDIETBANK N.V.
By: /s/
-----------------------------------
Its:
----------------------------------
Kredietbank N.V.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Kojo Asakura
Facsimile: 404/876-3212
[Signatures continued on next page]
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/
-----------------------------------
Its:
----------------------------------
Texas Commerce Bank National
Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: 214/965-2290
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EXHIBIT A
FORM NOTE
$______________ June ___, 1997
FOR VALUE RECEIVED, the undersigned CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership, hereby promises to pay to
_______________________________________ or order, in accordance with the terms
of that certain Second Amended and Restated Revolving Credit Agreement dated
June 6, 1997 (the "Credit Agreement"), as from time to time in effect, among
the undersigned, BankBoston, N.A., for itself and as Agent, and such other
Banks as may be from time to time named therein, to the extent not sooner paid,
on or before the Maturity Date, the principal sum of _______________________
DOLLARS ($______________), or such amount as may be advanced by the payee
hereof under the Credit Agreement with daily interest from the date hereof,
computed as provided in the Credit Agreement, on the principal amount hereof
from time to time unpaid, at a rate per annum on each portion of the principal
amount which shall at all times be equal to the rate of interest applicable to
such portion in accordance with the Credit Agreement, and with interest on
overdue principal and, to the extent permitted by applicable law, on overdue
installments of interest and late charges at the rates provided in the Credit
Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the
Credit Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the Borrower and the Banks and the Agent, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or
received by the Banks exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Banks in excess of the maximum lawful amount, the interest payable to
the Banks shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Banks shall ever
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receive anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations and to the
payment of interest or, if such excessive interest exceeds the unpaid balance
of principal of the Obligations, such excess shall be refunded to the Borrower.
All interest paid or agreed to be paid to the Banks shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full period until payment in full of the principal of the
Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount
permitted by applicable law. This paragraph shall control all agreements
between the Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts (without giving effect to the conflict of
laws rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without
notice.
This Note is a note executed in amendment and restatement in part of the
"Notes" as defined in the Amended Credit Agreement.
IN WITNESS WHEREOF the undersigned has by its duly authorized officers,
executed this Note under seal as of the day and year first above written.
CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership,
by its sole general partner
By: Crescent Real Estate Equities, Ltd., a
Delaware corporation
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
[CORPORATE SEAL]
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91
EXHIBIT B
FORM OF REQUEST FOR LOAN
[Exhibit Omitted]
92
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
[Exhibit Omitted]
93
SCHEDULE 1
BANKS AND COMMITMENTS
Name and Address Commitment Commitment Percentage
---------------- ---------- ---------------------
BankBoston, N.A. $170,000,000.00 48.571429%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
Eurodollar Lending Office
Same as above
NationsBank of Texas, N.A. $ 50,000,000.00 14.285714%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Administration
Eurodollar Lending Office
Same as above
Bankers Trust Company $ 50,000,000.00 14.285714%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ , ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Eurodollar Lending Office
Same as above
Texas Commerce Bank National $ 25,000,000.00 7.142857%
Association
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Eurodollar Lending Office
Same as above
First American Bank, S.S.B. $ 20,000,000.00 5.714286%
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
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94
Eurodollar Lending Office
Same as above
Comerica Bank-Texas $ 20,000,000.00 5.714286%
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Thanksgiving Tower, 2nd Floor
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Eurodollar Lending Office
Same as above
Kredietbank N.V. $ 15,000,000.00 4.285714%
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Kojo Asakura
Eurodollar Lending Office
Same as above
--------------- --------
$350,000,000.00 100.00%
Percentages may not equal 100% due to rounding.
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95
SCHEDULE 6.3
TITLE TO PROPERTIES
NO CHANGES TO REFLECT
96
SCHEDULE 6.7
LITIGATION
[Exhibit Omitted]
97
SCHEDULE 6.18
SUBSIDIARIES OF THE BORROWER
[Exhibit Omitted]
98
SCHEDULE 8.1(h)
EXISTING INDEBTEDNESS
[Exhibit Omitted]
