EXHIBIT 99.1
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REVOLVING CREDIT AGREEMENT
AND GUARANTY
HERITAGE PROPERTY INVESTMENT LIMITED PARTNERSHIP
AND
▇▇▇▇▇▇▇ OPERATING LIMITED PARTNERSHIP
Dated as of April 29, 2002
FLEET NATIONAL BANK, as Administrative Agent
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Syndication Agent
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES, as Co-Documentation Agent
WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as Co-Agent
and
FLEET SECURITIES INC., as Arranger
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REVOLVING CREDIT AGREEMENT
AND GUARANTY
This REVOLVING CREDIT AGREEMENT and GUARANTY is made as of the 29th day of
April, 2002 by and among HERITAGE PROPERTY INVESTMENT LIMITED PARTNERSHIP
("Heritage OP"), a Delaware limited partnership having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ OPERATING
LIMITED PARTNERSHIP ("▇▇▇▇▇▇▇ OP"), a Delaware limited partnership having its
principal place of business at 185 Great Neck Road, ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, HERITAGE PROPERTY INVESTMENT TRUST, INC. (the "REIT"), a
Maryland corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the other Guarantors named herein and FLEET
NATIONAL BANK and the other lenders signatories hereto or which may become
parties hereto pursuant to Section 18 (the "Lenders"), and FLEET NATIONAL BANK,
as Administrative Agent, Deutsche Bank Trust Company Americas, as Syndication
Agent, Commerzbank AG New York and Grand Cayman Branches, as Co-Documentation
Agent, Wachovia Bank, National Association, as Co-Documentation Agent, Dresdner
Bank AG, New York and Grand Cayman Branches, as Co-Agent and Fleet Securities
Inc., as Arranger.
RECITALS: Pursuant to this Agreement, there is being extended to the
Borrowers a $350,000,000 revolving credit facility, including a $50,000,000
sub-allotment for Letters of Credit, a $10,000,000 sub-allotment for Swingline
Loans and provision for certain Bid Rate Loans up to the Bid Rate Maximum
Amount. All the credit facilities mature on April 29, 2005, or such earlier
dates as are set forth or provided for herein.
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
ABSOLUTE RATE AUCTION. With respect to a request by the Borrowers for a Bid
Rate Advance, a solicitation in which the Borrowers specify in the Bid Rate
Advance Borrowing Notice that the rates of interest to be offered by the Lenders
shall be absolute rates per annum.
ACCUMULATED BENEFIT OBLIGATIONS. The actuarial present value of the
accumulated benefit obligations under any Plan, calculated in accordance with
Statement No. 87 of the Financial Accounting Standards Board.
ACQUISITION SUBSIDIARY. Heritage-▇▇▇▇▇▇ Acquisition, Inc., a Maryland
corporation and a wholly owned subsidiary of the REIT.
ADJUSTED NET OPERATING INCOME. With respect to any parcel of Real Estate
for any fiscal period an amount equal to (a) the sum of the gross revenues for
such property for such fiscal
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period minus (b) all operating expenses incurred with respect to such property
for such fiscal period, all as determined in accordance with GAAP; provided
there shall be deducted from such amount the following (to the extent not
duplicative of deduction already taken in the calculation of Adjusted Net
Operating Income), on a pro rata basis for such period, management expenses
computed at an annual rate equal to the greater of (1) three percent (3%) of the
annualized gross revenue of such property or (2) the annualized amount of
management fees actually incurred with respect to such property, provided that
the Borrowers shall have the right to perform the aforesaid calculation on an
aggregate basis for all such properties wherever the context herein would
appropriately permit the use of an aggregate calculation.
ADMINISTRATIVE AGENT. Fleet National Bank or any successor Administrative
Agent designated hereunder.
ADMINISTRATIVE AGENT'S HEAD OFFICE. The Administrative Agent's office
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
location as the Administrative Agent may designate from time to time by notice
to the REIT, the Borrowers and the Lenders.
ADMINISTRATIVE AGENT'S SPECIAL COUNSEL. Goulston & Storrs, P.C. or such
other counsel as may be selected by the Administrative Agent.
AFFECTED LENDER. See Section 4.12.
AFFILIATE. With respect to the Borrowers (or any other specified Person),
any other Person directly or indirectly controlling, controlled by or under
direct or indirect common control with any Borrower (or such specified Person),
and shall include (a) any officer or director or general partner of any Borrower
(or such specified Person), (b) any Person of which any Borrower (or such
specified Person) or any Affiliate (as defined in clause (a) above) of such
Borrower (or such specified Person) shall, directly or indirectly, beneficially
own either (i) at least 10% of the outstanding equity securities having the
general power to vote or (ii) at least 10% of all equity interests or (c) any
Person directly or indirectly controlling any Borrower (or such specified
Person) through a management agreement, voting agreement or other contract.
AGENT. The Administrative Agent.
AGGREGATE BORROWING BASE VALUE. The aggregate value of the Borrowing Base
Properties, as determined by the Administrative Agent from time to time on a
quarterly basis by dividing (a) the amount which is four times the Borrowing
Base Net Operating Income allocable to such parcels for the one (1) fiscal
quarter of the Borrowers most recently ended for which financial statements have
been furnished (or are required to be furnished) to the Lenders pursuant to
Section 7.4(c) by (b) nine and one-half percent (9.5%). This definition is used
in the covenant set forth in Section 9.7 hereof.
AGREEMENT. This Revolving Credit Agreement and Guaranty, including the
SCHEDULES and Exhibits hereto.
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APPLICABLE MARGIN. With respect to Libor Rate Loans, the spread, expressed
in basis points, over the Libor Rate and used in calculating the interest rate
applicable to Libor Rate Loans which spread shall vary from time to time in
relationship to variances in the Debt Ratings as set forth below. The applicable
Debt Ratings and Applicable Margins for Libor Rate Loans are as set forth in the
following table:
S&P ▇▇▇▇▇'▇ Fitch Ratings LIBOR Spread (bps)
------------- ------------- -------------- ------------------
▇- ▇▇ ▇- ▇▇.▇
BBB+ Baa1 BBB+ 85.0
BBB Baa2 BBB ▇▇.▇
▇▇▇- ▇▇▇▇ ▇▇▇- 105.0
Below BBB- or Below Baa3 or Below BBB- or 135.0
unrated unrated unrated
In the event the Debt Ratings from the three agencies referred to above are not
all equivalent, but two of them are equivalent, the Applicable Margin for Libor
Rate Loans will be determined based upon the two equivalent ratings provided
that the non-equivalent rating is no more than one level lower than the two
equivalent Debt Ratings. In the case where three ratings are obtained, two of
which are equivalent, but the third is more than one rating level lower than the
two equivalent ratings, or all three Debt Ratings are different from each other
the lowest of the three Debt Ratings will be used to determine the Applicable
Margin for Libor Rate Loans. In the event only two Debt Ratings are available
from the above agencies and the ratings differ from each other, the lower rating
level shall be used to determine the Applicable Margin for Libor Rate Loans. At
any time that there are not at least two Debt Ratings from the above agencies,
the Applicable Margin for Libor Rate Loans shall be 135 basis points.
Adjustments in the Applicable Margin for a Libor Rate Loan based upon a change
in a Debt Rating level shall be effective on the first day following the elapse
of the Interest Period for such Loan in which the change in the Debt Rating
occurs.
With respect to Base Rate Loans, the Applicable Margin shall be zero.
ARRANGER. Fleet Securities, Inc.
BALANCE SHEET DATE. December 31, 2001.
BASE RATE. A fluctuating interest rate per annum equal to the higher of (a)
the annual rate of interest announced from time to time by Fleet at the
principal banking office of Fleet in Boston, Massachusetts as its prime rate and
(b) the sum of 1/2% plus the Federal Funds Rate. The Base Rate is a reference
rate and does not necessarily represent the lowest or best rate being charged to
any customer. Changes in the rate of interest resulting from changes in the Base
Rate shall take place immediately without notice or demand of any kind.
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BASE RATE LOANS. Those Revolving Loans bearing interest calculated by
reference to the Base Rate.
BID RATE ADVANCE. A borrowing consisting of simultaneous Bid Rate Loans to
the Borrowers from each of the Lenders whose offer to make a Bid Rate Loan as
part of such borrowing has been accepted by the Borrowers under the applicable
auction bidding procedure described in Section 4.2A.
BID RATE ADVANCE BORROWING NOTICE. See Section 4.2A (b)(i).
BID RATE LOAN. A loan by a Lender to the Borrowers as part of a Bid Rate
Advance resulting from the applicable auction bidding procedure described in
Section 4.2A.
BID RATE MAXIMUM AMOUNT. $50,000,000.00.
BID RATE NOTES. The promissory notes substantially in the form of Exhibit A
hereto which evidence the Bid Rate Loans.
BORROWERS. Heritage OP and ▇▇▇▇▇▇▇ OP, on a joint and several basis. Any
other Wholly Owned Subsidiary may be made a Borrower hereunder, PROVIDED that
(a) such Wholly Owned Subsidiary has an appropriate legal structure as
reasonably determined by the Administrative Agent, (b) each of the existing
Borrowers and Guarantors petitions the Administrative Agent in writing that such
Wholly Owned Subsidiary be made a Borrower hereunder, (c) the Administrative
Agent provides written approval to the Borrowers and the Guarantors that such
Wholly Owned Subsidiary be made a Borrower hereunder and (d) such Wholly Owned
Subsidiary executes and delivers a joinder agreement in a form reasonably
satisfactory to the Administrative Agent, together with replacement Notes signed
by all the Borrowers, favorable opinions of legal counsel to the new Borrower
and such other documentation as the Administrative Agent shall reasonably
require. The singular term "Borrower" shall refer to a single entity included as
one of the Borrowers hereunder.
BORROWING BASE AVAILABILITY. At the relevant date of reference, the lesser
of (a) the maximum amount that would (after giving effect to the proposed Loan)
not cause Borrowers to be in violation of either of Sections 9.1 or 9.7 of this
Agreement or (b) the Total Commitment.
BORROWING BASE NET OPERATING INCOME. With respect to any Borrowing Base
Property for any fiscal period, an amount equal to (a) the sum of the gross
revenues of such property for such fiscal period minus (b) all operating
expenses incurred with respect to such property for such fiscal period, all as
determined in accordance with GAAP; provided that there shall be DEDUCTED from
such amount the following (to the extent not duplicative of deductions already
taken in the calculation of Borrowing Base Net Operating Income), on a pro rata
basis for such fiscal period: (i) a reserve allowance for replacements, capital
expenditures and leasing costs computed at the annual rate of $0.20 per square
foot of such property and (ii) management expenses computed at an annual rate
equal to the greater of (1) three percent (3%) of the annualized gross revenue
of such property or (2) the annualized amount of management fees
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actually incurred with respect to such property, provided that the Borrowers
shall have the right to perform the aforesaid calculation on an aggregate basis
for all such properties wherever the context herein would appropriately permit
the use of an aggregate calculation.
BORROWING BASE PROPERTY. At the relevant date of reference, each parcel of
the Eligible Real Estate, plus any other Real Estate approved by Administrative
Agent and the Majority Lenders in their discretion. The Borrowing Base
Properties as of the date hereof are listed together with their Borrowing Base
Values as of the date hereof in SCHEDULE 2 hereto.
BORROWING BASE VALUE. For each Borrowing Base Property, the value
determined for such property in connection with the calculation of Aggregate
Borrowing Base Value.
▇▇▇▇▇▇▇ INC. ▇▇▇▇▇▇▇ Real Estate, Inc., a Maryland corporation.
▇▇▇▇▇▇▇ OP. See the first paragraph of this Agreement.
▇▇▇▇▇▇▇ PARTNERSHIP AGREEMENT. The Second Restated Agreement of Limited
Partnership of ▇▇▇▇▇▇▇ OP, dated September 2, 1997, as amended by amendments
dated August 6, 1998, February 23, 1999 and September 7, 1999, as to be further
amended on or prior to the Initial Closing Date by an amendment provided to the
Administrative Agent pursuant to Section 6.8 and as further amended from time to
time as permitted by this Agreement.
BREAK-IN PERIOD. For any parcel of Real Estate other than a Development
Asset the period which is ninety (90) days after its acquisition by a member of
the Combined Group. For a Development Asset the period which is ninety (90) days
after completion of the Asset (as evidenced by the issuance of a full
certificate of occupancy).
BUILDING. With respect to each parcel of Real Estate, all of the buildings,
structures and improvements now or hereafter located thereon.
BUILDING SERVICE EQUIPMENT. All apparatus, fixtures and articles of
personal property owned by the Borrowers now or hereafter attached to or used or
procured for use in connection with the operation or maintenance of any
Building, including, but without limiting the generality of the foregoing, all
engines, furnaces, boilers, stokers, pumps, heaters, tank, dynamos, motors,
generators, switchboards, electrical equipment, heating, plumbing, lifting and
ventilating apparatus, air-cooling and air-conditioning apparatus, gas and
electric fixtures, elevators, escalators, fittings, and machinery and all other
equipment of every kind and description, used or procured for use in the
operation of a Building (except apparatus, fixtures or articles of personal
property belonging to lessees or other occupants of such building or to persons
other than the Borrowers and their respective Subsidiaries unless the same be
abandoned by any such lessee or other occupant or person), together with any and
all replacements thereof and additions thereto.
BUSINESS DAY. Any day other than a Saturday or a Sunday on which banking
institutions in Boston, Massachusetts and New York, New York are open for the
transaction of banking business and, in the case of Libor Rate Loans, which also
is a Libor Business Day.
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CAPITALIZED LEASES. Leases under which any member of the Combined Group 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.
CAPITALIZED VALUE. With respect to each parcel of Real Estate, as
determined by the Administrative Agent from time to time at least quarterly
(PROVIDED, that the Administrative Agent may, in its sole discretion, make such
determination more frequently), the value of such parcel of Real Estate as
determined by the Administrative Agent by dividing (a) the amount which is two
times the Adjusted Net Operating Income allocable to such parcel for the two
consecutive fiscal quarters of the Borrowers most recently ended for which
financial statements have been furnished (or required to be furnished) to the
Lenders pursuant to Section 7.4(c), pro rated for any joint venture interest
included by Administrative Agent in connection with this calculation, by (b)
nine and one-half percent (9.50%);
PROVIDED, HOWEVER, that for the purposes of this definition during the Break-in
Period for any parcel of Real Estate, such parcel shall be valued (x) at cost
and (y) thereafter, by dividing (i) the Adjusted Net Operating Income allocable
to such parcel for each consecutive two quarter period commencing after the
elapse of the Break-In Period for such parcel or asset, annualized on a
straight-line basis or otherwise as approved by the Administrative Agent by (ii)
nine and one-half percent (9.50%); and PROVIDED, FURTHER, that Borrowing Base
Properties or other parcels of Real Estate disposed of during any fiscal quarter
shall not be included in any determination of Capitalized Value.
This definition is used in the definition of Total Asset Value which, in
turn, is used in connection with the covenant set forth in Section 9.5 hereof.
CERCLA. See Section 6.18.
CHANGE OF CONTROL. The acquisition by any Person, or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended) of Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of 30% or
more of the outstanding shares of voting stock of the REIT; or during any period
of twelve (12) consecutive calendar months, individuals:
(i) who were directors of the REIT on the first day of such period;
or
(ii) whose election or nomination for election to the board of
directors of the REIT was recommended or approved by at least a majority of
the directors then still in office who were directors of the REIT on the
first day of such period, or whose election or nomination for election was
so approved,
shall cease to constitute a majority of the board of directors of the REIT.
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CODE. The Internal Revenue Code of 1986, as amended.
COMBINED. With reference to any term defined or used in this Agreement,
that term as applied to the accounts of all or a portion of the REIT and its
Subsidiaries combined in accordance with GAAP.
COMBINED GROUP. The REIT, Borrowers and each other Subsidiary of the REIT
or either of the Borrowers, from time to time in existence. The members of the
Combined Group as of the Initial Closing Date are listed in Schedule 6.19
hereto.
COMBINED NET WORTH. At any date, the common shareholders' equity and
preferred equity of the Combined Group determined in accordance with GAAP on a
combined and consolidated basis, less, however, the value of any intangibles
otherwise included in calculating such net worth under GAAP.
COMBINED TOTAL ASSET VALUE. The Total Asset Value of the Combined Group
determined on a combined and consolidated basis.
COMBINED TOTAL INDEBTEDNESS. All Indebtedness of the Combined Group
determined on a combined and consolidated basis; PROVIDED, Indebtedness of
Minority Interest Entities shall also be included as Combined Total Indebtedness
as follows: (i) if such Indebtedness is recourse, directly or indirectly, to any
member of the Combined Group, 100% of such Indebtedness shall be included and
(ii) if such Indebtedness is without recourse, directly or indirectly, to any
member of the Combined Group only, a percentage of such Indebtedness equal to
the percentage interest held in such entity by members of the Combined Group
shall be included.
COMMITMENT PERCENTAGE. With respect to any Lender's interest in the
Revolving Loan Commitment, the Revolving Loans or the Letter of Credit Exposure,
the percentage obtained by DIVIDING (i) such Lender's Revolving Loan Commitment
(or, if the Revolving Loan Commitments have been terminated, the outstanding
amount of each Lender's Revolving Loans and Letter of Credit Exposure) by (ii)
the aggregate amount of all Revolving Loan Commitments (or, if the Revolving
Loan Commitments have been terminated, the aggregate outstanding amount of all
Revolving Loans and Letter of Credit Exposure). The initial Commitment
Percentages are set forth on Schedule 1 attached hereto and are subject to
adjustment as set forth in this Agreement.
COMPLIANCE CERTIFICATE. See Section 7.4(d).
CONSOLIDATED OR CONSOLIDATING. With reference to any term defined herein,
that term as applied to the accounts of the REIT and its Subsidiaries, or a
portion thereof, consolidated or consolidating, as the case may be, in
accordance with GAAP.
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CONVERSION REQUEST. A notice given by the Borrowers to the Administrative
Agent of its election to convert or continue a Revolving Loan in accordance with
Section 4.1.
CREDIT FACILITY. The credit facilities evidenced by this Agreement.
DEBT RATING. The credit rating assigned by any of S&P, ▇▇▇▇▇'▇ or ▇▇▇▇▇
Ratings to the senior, long-term unsecured debt of the REIT or, if and when
available, the senior, long-term unsecured debt of the Borrowers on a combined
basis.
DEFAULT. A condition or event which, with either the giving of notice or
lapse of time or both, as provided herein, would, if not rectified within the
applicable cure period, constitute an Event of Default.
DEFAULT RATE. A per annum rate of interest equal to the rate described in
Section 4.10, as from time to time in effect.
DELINQUENT LENDER. See Section 14.2.
DEVELOPMENT ASSETS. A retail or office facility which is in the process of
development, design or construction or, if constructed, has not achieved a
minimum occupancy of eighty percent (80%) of the rentable square feet of such
facility having been leased for a minimum period of three (3) consecutive months
at rental rates at or above the market rental rate for similar properties in the
same geographical area. For the purpose hereof, facilities to be developed on
raw land adjacent to the sites of existing fully constructed facilities of a
member of the Combined Group shall include only the facilities to be developed
and not the existing constructed facilities.
DISQUALIFYING ENVIRONMENTAL EVENT. Any Release or threatened Release of
Hazardous Substances or any violation of Environmental Laws with respect to any
Borrowing Base Property that will, in the Administrative Agent's reasonable
opinion, cost in excess of $1,000,000 to remediate, or which, with respect to
the Borrowing Base Properties taken as a whole, will, in the Administrative
Agent's reasonable opinion, cost in excess of $10,000,000 to remediate.
DISTRIBUTION. With respect to any Borrower (or other specified Person):
(a) the declaration or payment of any dividend or distribution on or in
respect of any Equity Interest (including without limitation common equity and
preferred equity) in such Borrower (or such specified Person);
(b) the purchase, redemption, exchange or other retirement of any Equity
Interest in such Borrower (or such specified Person) or any of its Affiliates,
or of options, warrants or other rights for the purchase of any such Equity
Interest, directly or indirectly through an Affiliate or otherwise;
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(c) any other distribution or other payment on or in respect of any
Equity Interest in such Borrower (or such specified Person) or any of its
Affiliates, including without limitation any payment in respect of any indemnity
provided for any purchaser or holder of such an Equity Interest;
(d) any payment of principal or interest with respect to, or any
purchase, redemption or defeasance of, any Indebtedness of such Borrower (or
such specified Person) or any of its Affiliates which by its terms or the terms
of any agreement is subordinated to the payment of the Obligations; and
(e) any payment, loan or advance by such Borrower (or such specified
Person) to, or any other Investment by such Borrower (or such specified Person)
in, the holder of any Equity Interest in such Borrower (or such specified
Person) or any of its Affiliates, or any Affiliate of such holder (including the
payment of management and transaction fees and expenses);
PROVIDED, HOWEVER, that the term "Distribution" shall not include (i) dividends,
distributions, purchases, redemptions, exchanges or retirements on or of Equity
Interests that are payable solely in preferred stock or perpetual common stock
of or other similar Equity Interests in such Borrower (or such specified Person)
or (ii) payments in the ordinary course of business in respect of (A)
compensation paid to employees, officers and directors, (B) advances and
reimbursements to employees for travel expenses, drawing accounts, relocation
costs and similar expenditures, or (C) rent paid to, or accounts payable for
services rendered or goods sold by, non-Affiliates that own capital stock of or
other equity interests in such Borrower (or such specified Person) or any of its
Subsidiaries.
DOLLARS OR $. Dollars in lawful currency of the United States of America.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender located at
the address for such Lender in SCHEDULE 1 hereto; thereafter, such other office
of such Lender, if any, located within the United States that will be making or
maintaining Base Rate Loans.
DRAWDOWN DATE. The date on which any Revolving Loan is made or is to be
made, the date on which any Letter of Credit is to be issued and the date on
which any Revolving Loan is converted or combined in accordance with Section
4.1.
EBITDA. With respect to any Person for any fiscal period, an amount equal
to the sum of (a) the Net Income of such Person for such fiscal period plus (b)
depreciation, amortization, Interest Expense and taxes deducted in calculating
such Net Income, plus (c) any extraordinary or nonrecurring losses deducted in
calculating such Net Income, minus (d) any extraordinary or nonrecurring gains
included in calculating such Net Income, all as determined in accordance with
GAAP.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank organized under the laws of
the United States, or any State thereof or the District of Columbia; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of
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Columbia; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, PROVIDED that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) any other Person
which the Borrowers and the Administrative Agent shall agree is an Eligible
Assignee; PROVIDED, HOWEVER, that no institution described in clause (a), (b) or
(c) above shall be an Eligible Assignee unless it has total assets in excess of
$500,000,000, and unless it is not a direct or indirect affiliate as defined in
the Securities Exchange Act of 1934, as amended, of any of the REIT or the
Borrowers.
ELIGIBLE REAL ESTATE. As of any date of determination, any parcel of Real
Estate:
(a) which is a Permitted Property;
(b) which is wholly owned in fee by a Borrower or a Guarantor which is a
Subsidiary of a Borrower and a Wholly Owned Subsidiary;
(c) which is subject to no mortgage liens (including mortgage liens
related to the Surviving Debt) springing liens or negative pledges (other than
the negative pledge provided in Section 8.2) and is subject to no other liens or
encumbrances or judgment liens other than Permitted Borrowing Property Liens;
(d) which as certified by Borrowers to Administrative Agent's
satisfaction as of the date of determination, (i) conforms in all material
respects to the representations and warranties in Section 6.18 and 6.22 hereof;
and (ii) has no material deferred maintenance;
(e) which is not Development Assets or Land Assets;
(f) which has a leasing and occupancy level of 70% or greater determined
on a square footage basis;
(g) which has adequate insurance, as described in Section 7.7;
(h) which, as determined by Administrative Agent, has a Borrowing Base
Value not more than 10% of the Aggregate Borrowing Base Value at the time of its
determination as Eligible Real Estate;
(i) with respect to which Borrowers have provided to Administrative Agent
such historical operating and leasing information as reasonably requested by
Administrative Agent and Administrative Agent has approved the same; and
(j) with respect to which (individually and in the aggregate with other
Eligible Real Estate) no Disqualifying Environmental Event has occurred.
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provided that on each such date of determination, the Eligible Real Estate
comprising the Aggregate Borrowing Base Value in the aggregate is at least 80%
leased, there are no fewer than 60 separate Eligible Real Estate Assets. The
Borrowers shall certify compliance with all of the foregoing conditions in each
Loan Request.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by any Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
ENVIRONMENTAL ENGINEER. A firm of independent professional engineers,
environmental consultants or other scientists or experts generally recognized as
expert in the detection, analysis and remediation of Hazardous Substances and
related environmental matters and reasonably acceptable to the Administrative
Agent.
ENVIRONMENTAL LAWS. See Section 6.18(a).
EQUITY INTERESTS. With respect to any Borrower (or other specified Person)
any shares of any class of capital stock of or general or limited partnership
interests, limited liability company membership interests or other equity or
beneficial interests in such Borrower (or other specified Person), including
without limitation shares of preferred stock, preferred partnership interests
and other preferred equity interests.
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
REIT or any Borrower under section 414 of the Code; PROVIDED, HOWEVER, that for
all purposes of this Agreement the term ERISA Affiliate shall not include the
New England Teamsters and Trucking Industry Pension Fund.
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.
EVENT OF DEFAULT. See Section 12.1.
EXCESS AMOUNT. See Section 4.12.
EXCHANGE ACT. The federal Securities Exchange Act of 1934, as amended.
CARRYOVER LC. The standby letter of credit no. 1S1280147 issued by Fleet
for the benefit of Target Corporation on July 6, 2001, a copy of which is
attached hereto as Exhibit K.
FEDERAL FUNDS RATE. For any day, the rate equal to the weighted average
(rounded upward to the nearest 1/8%) of (a) the rates on overnight federal funds
transactions with
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members of the Federal Reserve System arranged by federal funds brokers, as such
weighted average is published for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal Reserve Bank of
New York or (b) if such rate is not so published for such Business Day,
quotations received by the Administrative Agent from three federal funds brokers
of recognized standing selected by the Administrative Agent. Each determination
by the Administrative Agent of the Federal Funds Rate shall, in the absence of
manifest error, be conclusive.
FEE LETTER. The letter agreement dated as of April 29, 2002 among the REIT,
Borrowers, Fleet and the Arranger.
FITCH RATINGS. Fitch Ratings, its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "Fitch Ratings" shall be deemed to
refer to any other nationally recognized securities rating agency designated by
the Administrative Agent by notice to the REIT, the Borrowers and the Lenders.
FIXED CHARGES. For any period, the sum of:
(a) the consolidated Interest Expense (after deducting non-cash
amortization of fees) of the REIT, the Borrowers and their Subsidiaries;
PLUS (b) the aggregate amount of all mandatory scheduled payments or prepayments
(excluding balloon payments to the extent paid from the proceeds of new or
renewal Indebtedness permitted hereunder) and sinking fund payments, all with
respect to Indebtedness of the REIT, the Borrowers and their Subsidiaries in
accordance with GAAP on a combined and consolidated basis, including payments in
the nature of principal under Capitalized Leases;
PLUS (c) cash dividends on REIT preferred stock and the Preferred Units and any
other mandatory dividends paid or payable in cash by the REIT, the Borrowers, or
any of their Subsidiaries to third parties;
PLUS (d) all mandatory scheduled payments of the deferred purchase price of
assets, services or securities, including related noncompetition, consulting and
stock repurchase obligations (other than ordinary trade accounts payable on
customary terms in the ordinary course of business), and any long-term
contractual obligations of the REIT, the Borrowers and their Subsidiaries.
FLEET. Fleet National Bank.
FNMA. The Federal National Mortgage Association.
FUNDS FROM OPERATIONS. As defined in accordance with resolutions adopted by
the Board of Governors of the National Association of Real Estate Investment
Trusts as in effect from time
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to time, but in any event before deduction of Distributions on preferred stock
or other preferred equity interests.
GAAP OR "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES". Generally Accepted
Accounting Principles in the United States of America, consistently applied.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the REIT, any
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. The REIT, the Acquisition Subsidiary, each Wholly Owned
Subsidiary and each Person which hereafter shall become a Wholly Owned
Subsidiary, in each case on a joint and several basis; provided that for
purposes of this definition, no Special Purpose Subsidiary shall be required to
be a Guarantor and that NHHLP shall not be required to be a Guarantor.
HAZARDOUS SUBSTANCES. See Section 6.18(b).
HERITAGE OP. See the first paragraph of this Agreement.
HERITAGE OP PARTNERSHIP AGREEMENT. The Agreement of Limited Partnership of
Heritage Property Investment Limited Partnership dated as of July 1, 1999 among
the REIT, as general partner, and Heritage Realty Special LP Corporation, a
Maryland corporation, as initial limited partner, as amended from time to time
as permitted by this Agreement.
INDEBTEDNESS. All of the following obligations without duplication: (a) the
Obligations and Surviving Debt to the extent outstanding from time to time; (b)
all other debt and similar monetary obligations for borrowed money, whether
direct or indirect; (c) all liabilities secured by any Lien existing on property
owned or acquired subject thereto, whether or not the liability secured thereby
shall have been assumed; (d) reimbursement obligations for letters of credit;
(e) obligations owed under Capitalized Leases, and (f) all guarantees,
endorsements and other contingent obligations for borrowed money whether direct
or indirect in respect of indebtedness or obligations of others.
INDEXED RATE AUCTION. With respect to a request by the Borrowers for a Bid
Rate Advance, a solicitation in which the Borrowers specify in the Bid Rate
Advance Borrowing Notice that the rates of interest to be offered by the Lenders
shall be rates per annum at a margin greater or less than the LIBOR Rate.
INITIAL CLOSING DATE. April 29, 2002.
INTEREST EXPENSE. With respect to any Person for any fiscal period, the
interest expense of such Person for such fiscal period determined in accordance
with generally accepted accounting principles PLUS, without duplication, all
capitalized interest of such Person for such fiscal period.
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INTEREST PAYMENT DATE. The first Business Day of each calendar month.
INTEREST PERIOD. With respect to each Libor Rate Loan (a) initially, the
period commencing on the Drawdown Date of such Loan and ending on the last day
of a period of one, two or three months, as selected by the Borrowers in a Loan
Request, and (b) thereafter, each period of one, two or three months, 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 such period, as selected
by the Borrowers 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 Libor Rate Loan would
otherwise end on a day that is not a Libor Business Day, that Interest Period
shall be extended to the next succeeding Libor Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Libor Business Day;
(b) if the Borrowers shall fail to give notice as provided in Section
4.1, the Borrowers shall be deemed to have requested a conversion of the
affected Libor Rate Loan to a Base Rate Loan on the last day of the then current
Interest Period with respect thereto;
(c) any Interest Period relating to any Libor Rate Loan that begins on
the last Libor Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Libor Business Day of a calendar month;
(d) any Interest Period relating to any Libor Rate Loan that would
otherwise extend beyond the Maturity Date shall end on the Maturity Date; and
(e) prior to the earlier of the date 90 days after the Initial Closing
Date or the date the Administrative Agent informs the Borrowers that the
proposed initial syndication of the credit facility provided hereby will close,
no Interest Period relating to a Libor Rate Loan shall extend beyond one month
except with the written consent of the Administrative Agent. The Borrowers and
the Administrative Agent shall confer about the appropriate scheduling of the
selection of Interest Periods relating to Libor Rate Loans to facilitate the
anticipated syndication of the credit facilities provided herein to other
Lenders.
The term "Interest Period" shall mean with respect to each Base Rate Loan
consecutive periods of one (1) day each.
INVESTMENT GRADE. With respect to any Debt Rating, a rating of BBB- or
higher from S&P, of Baa3 or higher from Moody's or of BBB- or higher from Fitch
Ratings.
INVESTMENTS. With respect to any Person, all shares of capital stock,
evidences of Indebtedness and other securities issued by any other Person to
such Person or acquired by any means by such Person through a third-party, all
loans, advances, or extensions of credit to, or
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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, (ii) current trade and customer
accounts receivable for services rendered in the ordinary course of business and
payable in accordance with customary trade terms, (iii) advances to employees
for travel expenses, drawing accounts and similar expenditures, (iv) prepaid
expenses made in the ordinary course of business or (v) stock or other
securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to the REIT or any Subsidiary or as security
for any such Indebtedness or claim. In determining the aggregate amount of
Investments outstanding at any particular time: (a) there shall be included as
an Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (b) 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); (c) 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 (a) may be deducted when paid; and (d) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
IPO. See Section 10.13.
ISP 98. See Section 2.14.
LAND ASSETS. Unimproved land.
LEASES. Leases, licenses and agreements whether written or oral, relating
to the use or occupation of space in or on the Building or on the Real Estate by
persons other than any Borrower.
LENDERS. See the first paragraph of this Agreement.
LENDING INSTALLATION. With respect to a Lender, any office, branch,
subsidiary or affiliate of such Lender.
LETTER OF CREDIT. See Section 2.8. For all purposes of this Agreement, the
Carryover LC shall be deemed to be a Letter of Credit issued under Section 2.8.
LETTER OF CREDIT EXPOSURE. On any date, the sum of (a) the aggregate face
amount of all drafts that may then or thereafter be presented by beneficiaries
under all Letters of Credit then outstanding, plus (b) the aggregate face amount
of all drafts that the Letter of Credit Issuer has previously accepted under
Letters of Credit but has not paid. Letter of Credit Exposure shall be allocated
to each Lender in accordance with its Commitment Percentage therein.
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LETTER OF CREDIT ISSUER. Fleet or such other Lender as may be selected from
time to time by the Borrowers for good cause subject to the reasonable approval
of Fleet; PROVIDED, that no Lender other than Fleet shall be obligated to act as
a Letter of Credit Issuer hereunder except with the written consent of such
Lender, which may be withheld at the discretion of the Lender.
LIBOR BUSINESS DAY. Any day which is a day on which dealings in Dollar
deposits are transacted in the London interbank market and banks are open for
business in London.
LIBOR RATE shall mean as applicable to any Libor Rate Loan, the rate per
annum as determined on the basis of the offered rates for deposits in U.S.
Dollars, for a period of time comparable to such Libor Rate Loan which appears
on the Telerate page 3750 as of 11:00 A.M. London time on the date that is two
Libor Business Days preceding the first day of such Libor Rate Loan; provided,
however, if the rate described above does not appear on the Telerate System on
any applicable interest determination date, the Libor Rate shall be the rate
(rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of the offered rates for deposits in
U.S. dollars for a period of time comparable to such Libor Rate Loan which are
offered by four major banks in London interbank market at approximately 11:00
A.M. London time, on the day that is two (2) Libor Business Days proceeding the
first day of such Libor Rate Loan as selected by Administrative Agent. The
principal London office of each of the four major London banks will be requested
to provide a quotation of its U.S. Dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted for loans
in U.S. Dollars to leading European banks for a period of time comparable to
such Libor Rate Loan offered by major banks in New York City at approximately
11:00 A.M. New York City time, on the day that is two Libor Business Days
preceding the first day of such Libor Rate Loan. In the event that
Administrative Agent is unable to obtain any such quotation as provided above,
it will be deemed that the Libor Rate pursuant to a Libor Rate Loan cannot be
determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to Libor deposits of
Lender then for any period during which such Reserve Percentage shall apply, the
Libor Rate shall be equal to the amount determined above divided by an amount
equal to 1 minus the Reserve Percentage. "Reserve Percentage" shall mean the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed on member banks of the Federal
Reserve System against "Euro-currency Liabilities" as defined in Regulation D.
LIBOR RATE LOAN. Those Revolving Loans bearing interest calculated by
reference to the Libor Rate.
LIENS. See Section 8.2.
LOAN. A Revolving Loan, Swingline Loan or Bid Rate Loan and "Loans" means
all of such Revolving Loans, Swingline Loans and Bid Rate Loans, collectively.
LOAN AMOUNT. $350,000,000.
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LOAN DOCUMENTS. This Agreement, the Notes, the Letters of Credit, each
Qualified Hedge Agreement, the Fee Letter, and all amendments to the foregoing
and other documents, instruments or agreements executed or delivered by or on
behalf of any Borrower or any Guarantor in connection with the Loans.
MAJORITY LENDERS. Lenders holding 66 2/3% of the Total Commitment;
PROVIDED, HOWEVER, that in the event the obligations of the Lenders to make
Revolving Loans hereunder shall have been terminated, Lenders holding 66 2/3% of
the sum of the outstanding principal amount of the Revolving Loans plus the
participations under Section 2.11 in the Letter of Credit Exposure; and
PROVIDED, FURTHER, that the Revolving Loan Commitment or, as the case may be,
Revolving Loans and Letter of Credit Exposure participations of any Delinquent
Lender shall not be included in the calculation of the Total Commitment for the
purpose of this definition nor in the calculation of Majority Lenders.
MARGIN STOCK. "Margin stock" within the meaning of Regulation T, U or X (or
any successor provisions) of the Board of Governors of the Federal Reserve
System, or any regulations, interpretations or rulings thereunder, all as from
time to time in effect.
MATERIAL AGREEMENT. Each of the ▇▇▇▇▇▇▇ OP Partnership Agreement and the
Heritage OP Partnership Agreement, the Articles of Incorporation of the REIT and
all of the partnership agreements, limited liability company operating
agreements, corporate charters and by-laws or similar agreements relating to the
formation, organization or governance of any other entity now or hereafter an
Obligor hereunder, all as the same may be amended pursuant to the terms and
conditions of this Agreement.
MATURITY DATE. April 29, 2005, or such earlier date on which the Revolving
Loans shall become due and payable pursuant to the terms hereof.
MINORITY INTEREST ENTITY(IES). Any of the partnerships, associations,
corporations, limited liability companies, trusts, joint ventures or other
business entities in which any of the members of the Combined Group, directly or
indirectly, through ownership of interests in another entity, owns and controls
equity and voting interests less than that set forth in the definition of
Subsidiary.
MOODY'S. ▇▇▇▇▇'▇ Investors Service, Inc., a corporation organized and
existing under the laws of the State of Delaware, its successors and assigns,
and, if such corporation shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, "Moody's" shall be deemed
to refer to any other nationally recognized securities rating agency designated
by the Administrative Agent by notice to the REIT, the Borrowers and the
Lenders.
MTN INDENTURE. The Indenture dated November 24, 1997 from ▇▇▇▇▇▇▇ OP to
LaSalle National Bank, as trustee, as amended to the Initial Closing Date and as
further amended as permitted by this Agreement.
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MTN NOTES. Each of (a) the 7% Senior Notes due 2004 of ▇▇▇▇▇▇▇ OP issued in
the original aggregate principal amount of $100,000,000, (b) the 8.875% Notes
due 2006 of ▇▇▇▇▇▇▇ OP issued in the original aggregate principal amount of
$75,000,000 and (c) the 7.2% Senior Notes due 2008 of ▇▇▇▇▇▇▇ OP issued in the
original aggregate principal amount of $100,000,000.
MTN SUPPLEMENTAL INDENTURES. Each of (a) Supplemental Indenture No. 1 dated
as of November 24, 1997 between ▇▇▇▇▇▇▇ OP and LaSalle National Bank, as
trustee, (b) Supplemental Indenture No. 2 dated as of January 28, 1998 between
▇▇▇▇▇▇▇ OP and LaSalle National Bank, as trustee, and (c) Supplemental Indenture
No. 3 dated as of March 20, 2000 between ▇▇▇▇▇▇▇ OP and LaSalle National Bank,
as trustee.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the REIT, any 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.
NHHLP. NH Heritage Limited Partnership, a New Hampshire limited partnership
and a Wholly Owned Subsidiary.
NON-RECOURSE INDEBTEDNESS. Indebtedness of any Borrower or a Subsidiary for
which the obligor thereunder (which may include the direct obligor and, in
addition, any other Borrower or Subsidiary whose Non-recourse Indebtedness is
cross-guaranteed or cross-collateralized with such Indebtedness as permitted
under Section 8.11) is not liable or obligated other than as to its interest in
designated Real Estate or another specifically identified asset only, subject to
such limited exceptions to the non-recourse nature of such Indebtedness as are
usual and customary in like transactions involving institutional lenders at the
time of the incurrence of such Indebtedness, such as fraud, fraudulent
conveyance, intentional misrepresentation, misappropriation of funds or other
property, misapplication of funds (including without limitation rents, profits,
tenant deposits or insurance or condemnation proceeds), mismanagement or waste,
tax, ERISA, environmental and other regulatory law indemnities, nonpayment of
utilities, operations and maintenance expenses and obligations secured by
statutory liens, failure to comply with legal requirements necessary to maintain
the tax-exemption on the interest on such Indebtedness (if applicable), failure
to insure or failure to pay transfer fees and charges due to the lender in
connection with any sale or other transfer of the Real Estate subject to such
Indebtedness and any fees and expenses (and interest thereon) of the holder of
such Indebtedness in connection with the enforcement of such recourse
obligations; PROVIDED, HOWEVER, that Indebtedness of any Special Purpose
Subsidiary shall be considered Non-recourse Indebtedness hereunder even if such
Indebtedness shall constitute a general obligation of such Special Purpose
Subsidiary so long as the only asset of such Special Purpose Subsidiary is the
Real Estate financed by such Indebtedness and there is no recourse for such
Indebtedness to any Obligor, except as provided above in this definition.
Notwithstanding the foregoing, the Administrative Agent and the
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Lenders agree that, notwithstanding any of the terms of this definition to the
contrary (but subject to the provisos stated in Section 8.1(f), the Indebtedness
under the PMCC Loan Agreement shall constitute Nonrecourse Indebtedness for the
purpose of this Agreement; provided, that such agreement of the Administrative
Agent and the Lenders shall not apply to any Indebtedness other than the
Indebtedness under the PMCC Loan Agreement and shall be without prejudice to the
acceptability or nonacceptability of any recourse provisions with respect to any
other Indebtedness.
NOTES. The Revolving Credit Notes, the Swingline Note and the Bid Rate
Notes.
OBLIGATIONS. All indebtedness, obligations and liabilities of the
Borrowers, the Guarantors and any of their respective Subsidiaries to any of the
Lenders and the Administrative Agent, individually or collectively, under this
Agreement or any of the other Loan Documents or in respect of any of the
Revolving Loans, the Swingline Loans, the Bid Rate Loans, the Notes or the
Letters of Credit, 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.
OBLIGOR. Each Borrower and each Guarantor. The Obligors as of the Initial
Closing Date are identified in SCHEDULE 6.19 hereto.
OUTSTANDING. With respect to the Loans and the Letter of Credit Exposure,
the aggregate unpaid principal thereof as of any date of determination.
PARTNERSHIP STATUS. With respect to a Borrower, its status as a limited
partnership exempt from federal income taxation under the Code.
PAYMENT OFFICE. The principal office of the Administrative Agent in Boston,
Massachusetts located on the date hereof at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ or such other office of the Administrative Agent as the
Administrative Agent may from time to time designate by written notice to the
Borrowers and the Lenders.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED BORROWING PROPERTY LIENS. Permitted Liens under Sections 8.2(ii),
8.2(iii), 8.2(v), 8.2(ix) and 8.2(x).
PERMITTED LIENS. Liens, security interests and other encumbrances permitted
by Section 8.2.
PERMITTED PROPERTY. Real Estate located in the United States of America
which is a property principally used as a retail shopping center and is, in the
reasonable judgment of Administrative Agent, consistent with the characteristics
of the Borrower's real estate portfolios in regard to geographical
diversification, size and asset quality; provided that, in addition to the
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foregoing, the term Permitted Property shall also include the office building
located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ which is the headquarters of the
Borrowers, and the office property located at 185 Great Neck Road, P.O. Box
220457, Great Neck, on Long Island, New York.
PERSON. Any individual, corporation, partnership, limited liability
company, limited partnership, trust, unincorporated association, business, or
other legal entity, and any government or any governmental agency or political
subdivision thereof.
PLAN. At any time, any pension benefit plan subject to Title IV of ERISA
maintained, or to which contributions have been made or are required to be made,
by the REIT, any Borrower or any ERISA Affiliate within six years prior to such
time.
PMCC INDEMNITY. The Indemnity and Guaranty Agreement dated as of September
18, 2000 by the REIT in favor of Prudential Mortgage Capital Company, LLC, as
amended as permitted by this Agreement.
PMCC LOAN AGREEMENT. The Loan Agreement dated as of September 18, 2000
between Heritage SPE LLC and Prudential Mortgage Capital Company, LLC, as from
time to time amended as permitted by this Agreement.
PREFERRED UNITS. Each of the 8.875% Series B Cumulative Redeemable
Perpetual Preferred Units and the 8.875% Series C Cumulative Redeemable
Perpetual Preferred Unites of ▇▇▇▇▇▇▇ OP.
PRIOR CREDIT AGREEMENTS. (a) the $425,000,000 Revolving and Term Credit
Agreement dated as of September 18, 2000 among the REIT and Borrowers, on the
one hand, and Administrative Agent and the Lenders named therein, on the other
hand; (b) the $100,000,000 Subordinated Term Loan Agreement dated as of
September 18, 2000 among the REIT, Fleet and New England Teamsters and Trucking
Industry Pension Fund; and (c) the existing interest rate collar arrangements of
the Borrower with Fleet National Bank.
QUALIFIED HEDGE AGREEMENT. Any interest rate protection agreement which is
entered into between any Borrower and any Lender.
REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by the REIT, any Borrower or any of their respective Subsidiaries and
all Buildings and Building Service Equipment located thereon.
RECORD. The grid attached to any Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
REFERENCE LENDER. Fleet.
REGISTER. See Section 18.3.
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REIT. See the first paragraph of this Agreement.
REIT STATUS. With respect to the REIT, its status as a real estate
investment trust as defined in Section 856(a) of the Code.
RELEASE. See Section 6.18(c)(iii).
RENT ROLL. A report prepared by the Borrowers showing with respect to Real
Estate its type, occupancy status, lease expiration dates, lease rents and other
information, substantially in the form presented to the Administrative Agent
prior to the date hereof or in such other form as may have been approved by the
Administrative Agent, such approval not to be unreasonably withheld.
REPLACEMENT LENDER. See Section 4.13.
REVOLVING CREDIT NOTE RECORD. A Record with respect to any Revolving Credit
Note.
REVOLVING CREDIT NOTES. See Section 2.4.
REVOLVING LOAN COMMITMENT. With respect to each Lender, the amount set
forth on Schedule 1 hereto as the amount of such Lender's Commitment to make or
maintain Revolving Loans to, and to participate in Letters of Credit for the
account of, the Borrowers, as the same may be modified from time to time
pursuant to the terms and conditions of this Agreement, PROVIDED, that the
aggregate amount of the Revolving Loan Commitments of all the Lenders shall not
exceed the Total Commitment.
REVOLVING LOAN REQUEST. See Section 2.6.
REVOLVING LOANS. Revolving loans made or to be made by any of the Lenders
to the Borrowers pursuant to Section 2, including payments of Letter of Credit
drafts under Section 2.13, and conversions of Swingline Loans to Revolving Loans
under Section 4.2.
S&P. Standard & Poor's, a Division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a
corporation organized and existing under the laws of the State of New York, its
successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized
securities rating agency designated by the Administrative Agent by notice to the
REIT, the Borrowers and the Lenders.
SEC. The federal Securities and Exchange Commission.
SHORT-TERM INVESTMENTS. Investments described in subsections (a) through
(g), inclusive, of Section 8.3.
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SPECIAL PURPOSE SUBSIDIARY. Any Subsidiary of the REIT and/or any Borrower
which was formed and continues to be maintained (a) solely for the purpose of
incurring Non-recourse Indebtedness and owning properties financed thereby or
(b) solely for the purpose of acting as general partner or managing member of
one or more entities described in clause (a).
SPECIFIED REMITTANCE TIME. (a) If the relevant Payment Office is located in
Boston, 1:00 p.m. (Boston time) and (b) if the relevant Payment Office is
located elsewhere, such time as the Administrative Agent shall specify after
consultation with the Lenders and the consent of the Borrowers, which consent
shall not be unreasonably withheld.
STATE. A state or commonwealth of the United States of America.
SUBSIDIARY. Any corporation, association, partnership, limited liability
company, 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 or, in the case of a partnership, of which the
designated parent or a Subsidiary owns a majority (by percentage of ownership)
of the limited partnership interests or is a general partner, or, in the case of
a limited liability company, of which the designated parent or a Subsidiary owns
a majority (by percentage ownership) of the voting and profits interests.
SURVIVING DEBT. The debt or other obligations listed on Exhibit B annexed
hereto and incorporated herein including, without limitation, the debt and
obligations arising under the MTN Indenture, MTN Notes, MTN Supplemental
Indenture, PMCC Indemnity, PMCC Loan Agreement.
SURVIVING DEBT AGREEMENTS. Each instrument evidencing or securing the
Surviving Debt, as the same may be amended from time to time as permitted
hereunder.
SWINGLINE COMMITMENT. The obligation of the Swingline Lender to make
Swingline Loans to the Borrower in a maximum principal amount not exceeding at
any time $10,000,000.
SWINGLINE LENDER. Fleet, in its capacity as swingline lender hereunder, or
any Eligible Assignee of Fleet who executes an Assignment and Assumption
assuming Fleet's obligations as Swingline Lender.
SWINGLINE LOANS. Collectively, the loans in the maximum aggregate principal
amount of the Swingline Commitment made or to be made by the Swingline Lender to
the Borrowers pursuant to Section 4.2 of this Agreement and subject to the
limitations contained herein and with each such Swingline Loan bearing interest
at a per annum rate equal to the Base Rate.
SWINGLINE LOAN AMOUNT. See Section 4.2(b)
SWINGLINE NOTE. The promissory note substantially in the form of Exhibit C
hereto which evidences the Swingline Loans.
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SWINGLINE TERMINATION DATE. The date which is no later than the 15th day
preceding the Maturity Date.
TOTAL ASSET VALUE. With respect to a Borrower or any other member of the
Combined Group, the sum of (a) the Capitalized Value of each parcel of Real
Estate (excluding Development Assets and Land Assets) owned in fee by such
Borrower or such member, plus (b) the book value determined in accordance with
generally accepted accounting principles of each parcel of Real Estate
constituting Development Assets or Land Assets owned in fee by such Borrower or
such member (PROVIDED, that no Development Assets which have been in such status
for more than 24 months shall be included in the calculation of Total Asset
Value), plus (c) any unencumbered cash and Short-term Investments owned by such
Borrower or such member, plus(d) with respect to Real Estate (other than
Development Assets or Land Assets), owned by a Minority Interest Entity, the
Capitalized Value of such Real Estate, pro rated by the percentage ownership
interests held by Borrower or such member in such Real Estate. This definition
is used in connection with the covenants set forth in Sections 9.4 and 9.5
hereof.
TOTAL COMMITMENT. The sum of the Revolving Loan Commitments of the Lenders,
as in effect from time to time (or, if the Revolving Loan Commitments have been
terminated, the outstanding principal amount of the Loans and the Letter of
Credit Exposure in effect from time to time). As of the date of this Agreement
the Total Commitment (including the Swingline Commitment or Swingline Loans
prior to conversion to Revolving Loans under Section 2.3 hereof) shall not
exceed $350,000,000. After the date of this Agreement the aggregate amount of
the Total Commitment may be increased to an amount not exceeding $350,000,000 in
accordance with the provisions of Section 2.3.
TYPE. As to any Revolving Loan, its nature as a Base Rate Loan or a Libor
Rate Loan.
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 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.
WHOLLY OWNED SUBSIDIARY. Any Subsidiary of which all of the outstanding
capital stock (or other shares of beneficial interest) entitled to vote
generally (other than directors' qualifying shares) is owned by the REIT and/or
a Borrower directly, or indirectly through one or more Wholly Owned
Subsidiaries. Notwithstanding the foregoing sentence, for the purpose of this
Agreement, each of Heritage OP and ▇▇▇▇▇▇▇ OP shall be considered a Wholly Owned
Subsidiary.
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RULES OF INTERPRETATION.
(a) 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.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to such
law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) 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.
(f) The words "include", "includes" and "including" are not limiting.
(g) 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 Massachusetts, have the meanings assigned to them therein.
(h) Reference to a particular "Section" refers to that section of this
Agreement unless otherwise indicated.
(i) 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.
Section 2. THE REVOLVING CREDIT FACILITY AND LETTER OF CREDIT FACILITY.
Section 2.1. COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Agreement, each of the Lenders severally agrees to lend to the
Borrowers, and the Borrowers may borrow (and repay and reborrow) from time to
time on any Business Day from (and including) the Initial Closing Date to (and
excluding) the Maturity Date upon notice by the Borrowers to the Administrative
Agent given in accordance with Section 2.6, such sums as are requested by the
Borrowers for the purposes set forth in Section 7.11 up to a maximum aggregate
principal amount outstanding (after giving effect to all amounts requested) at
any one time equal to such Lender's Revolving Loan Commitment minus the portion
of such Lender's Revolving Loan Commitment allocated to Letter of Credit
Exposure; PROVIDED, that, all conditions under Section 10 (if applicable) and
under Section 11 shall have been satisfied; and PROVIDED, FURTHER, that the sum
of outstanding principal amount of the Revolving Loans (after giving effect to
all amounts requested) PLUS the Letter of Credit Exposure PLUS the outstanding
principal amount of all Swingline Loans and all Bid Rate Loans shall not at any
time exceed either the Total Commitment or the Borrowing Base Availability. The
Revolving Loans shall be made pro rata in
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accordance with each Lender's Commitment Percentage therein. Each request for a
Revolving Loan hereunder shall constitute a representation and warranty by the
Borrowers that all of the conditions set forth in Section 10 have been satisfied
as of the Initial Closing Date and that all of the conditions set forth in
Section 11 have been satisfied on the date of such request; it being
acknowledged and agreed that the Borrowers shall be permitted to request and
borrow Revolving Loans if a Disqualifying Environmental Event (or other
condition the result of which is to cause any Real Estate to no longer meet the
conditions of Eligible Real Estate) exists on a Borrowing Base Property (but no
Default or Event of Default exists), provided that such parcel of Real Estate
shall no longer be a Borrowing Base Property and shall be excluded from the
calculation of Borrowing Base Availability and the financial covenants set forth
in Section 9 for all purposes hereunder.
Section 2.2. FACILITY FEE. The Borrowers agree to pay to the
Administrative Agent for the accounts of the Lenders in accordance with their
respective Commitment Percentages in the Revolving Loan Commitments a facility
fee ("Facility Fee") calculated on the Total Commitment at the rate, expressed
in basis points, which shall vary from time to time in relationship to variances
in the Debt Ratings as set forth in the following table:
S&P ▇▇▇▇▇'▇ Fitch Ratings Facility Fee (bps)
------------- -------------- -------------- -------------------
▇- ▇▇ ▇- ▇▇
BBB+ Baa1 BBB+ 15
BBB Baa2 BBB 20
BBB- Baa3 BBB- 20
Below BBB- or Below Baa3 or Below BBB- or 25
unrated unrated unrated
If at a due date of the Facility Fee, the Debt Rating levels differ among the
rating agencies referred to in the above table, the amount of the Facility Fee
due shall be determined by reference to the Debt Rating that yields the highest
Facility Fee. At any time that there are not at least two Debt Ratings from the
above agencies the Facility Fee shall be 25 basis points. During the term hereof
the Facility Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof, with a final payment on the Maturity Date with, however, for purposes
of calculation, changes in the amount of the Facility Fee payable hereunder
becoming effective on the first day following any change in any Debt Rating, as
aforesaid.
Section 2.3. DECREASES IN TOTAL COMMITMENT. The Borrowers shall have the
right at any time and from time to time upon five Business Days' prior written
notice to the Administrative Agent to reduce by $5,000,000 or an integral
multiple of $1,000,000 in excess thereof or to terminate entirely the unborrowed
portion of the Revolving Loan Commitments, whereupon the Revolving Loan
Commitments of the Lenders shall be reduced pro rata in accordance with their
respective
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ with respect to the Revolving Loan Commitments of the
amount specified in such notice, or as the case may be, terminated, any such
reduction to be without penalty (other than any payments required under Section
4.7 in the event such reduction requires repayment of a Libor Rate Loan),
PROVIDED, that no such reduction may reduce the Revolving Loan Commitments to an
amount that is less than the sum of the principal amount of the Loans
outstanding plus the Letter of Credit Exposure in effect immediately after
giving effect to such reduction. Promptly after receiving any such reduction or
termination notice of the Borrowers delivered pursuant to this Section 2.3, the
Administrative Agent will notify the Lenders of the substance thereof. Upon the
effective date of any such reduction or termination, the Borrowers shall pay to
the Administrative Agent for the respective accounts of the Lenders the full
amount of the Facility Fee then accrued on the amount of the reduction or
termination. No reduction or termination of the Revolving Loan Commitments may
be reinstated.
Section 2.4. REVOLVING CREDIT NOTES. The Revolving Loans shall be
evidenced by separate promissory notes of the Borrowers in substantially the
form of Exhibit D hereto (collectively, the "Revolving Credit Notes"), dated as
of the Initial Closing Date and completed with appropriate insertions. One
Revolving Credit Note shall be payable to the order of each Lender in the
principal amount equal to such Lender's Revolving Loan Commitment or, if less,
the outstanding amount of all Revolving Loans made by such Lender, plus interest
accrued thereon, as set forth below. The Borrowers irrevocably authorize each
Lender to make or cause to be made, at or about the time of the Drawdown Date of
any Revolving Loan or at the time of receipt of any payment of principal
thereof, an appropriate notation on such Lender's Record reflecting the making
of such Revolving Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Revolving Loans set forth on such Lender's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Lender, but the failure to record, or any error in so recording, any
such amount on such Lender's Record shall not limit or otherwise affect the
obligations of the Borrowers hereunder or under any Revolving Credit Note to
make payments of principal of or interest on any Revolving Credit Note when due.
Section 2.5. INTEREST ON REVOLVING LOANS.
(a) Each Revolving Loan which is a not a Libor Rate Loan shall bear
interest at the Base Rate plus the Applicable Margin on Base Rate Loans from
time to time in effect.
(b) Each Revolving Loan which is a Libor 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 Libor Rate determined for such Interest Period plus the
Applicable Margin on Libor Rate Loans from time to time in effect.
(c) The Borrowers promise to pay interest on each Revolving Loan in
arrears on each Interest Payment Date with respect thereto.
(d) Revolving Loans which are Base Rate Loans and Libor Rate Loans may be
converted to Revolving Loans of the other Type as provided in Section 4.1.
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Section 2.6. REQUESTS FOR REVOLVING LOANS. The Borrowers shall give to the
Administrative Agent written notice in the form of Exhibit E hereto that is
fully completed (or telephonic notice confirmed in writing in the form of
Exhibit E hereto) of each Revolving Loan requested hereunder (a "Loan Request"),
no later than (x) 10:00 a.m. (Boston time) on the Business Day next preceding
the proposed Drawdown Date for each Base Rate Loan and (y) 10:00 a.m. (Boston
time) on the third Business Day next preceding the proposed Drawdown Date for
each Libor Rate Loan. Each such notice shall specify with respect to the
requested Revolving Loan the proposed principal amount, Drawdown Date, Interest
Period and Type. Each such notice shall also contain (i) a calculation showing
that after giving effect to such advance the sum of the principal amount of
Revolving Loans to be outstanding PLUS the Letter of Credit Exposure plus the
outstanding principal amount of all Swingline Loans and all Bid Rate Loans shall
not exceed either the Total Commitment or the Borrowing Base Availability then
in effect (after taking into account any exclusions of Borrowing Base Properties
pursuant to Section 2.1 or any other provision hereof) and (ii) a certification
by the treasurer, assistant treasurer or other financial officer of the
Borrowers that all conditions under Section 11 shall have been satisfied with
respect to the making of such Revolving Loan. Promptly upon receipt of any such
notice, the Administrative Agent shall notify each of the Lenders thereof. Each
such notice shall be irrevocable and binding on the Borrowers and shall obligate
the Borrowers to accept the Revolving Loan requested from the Lenders on the
proposed 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 Libor Rate Loan in a minimum aggregate amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof; PROVIDED,
HOWEVER, that there shall be no more than five (5) Libor Rate Loans having
different Interest Periods outstanding at any one time.
Section 2.7. FUNDS FOR REVOLVING LOANS. Not later than 12:00 noon (Boston
time) on the proposed Drawdown Date of any Revolving Loans, each of the Lenders
will make available to the Administrative Agent, at the Administrative Agent's
Head Office, in immediately available funds, the amount of such Lender's
Commitment Percentage of the amount of the requested Revolving Loans. Upon
receipt from each Lender of such amount, and upon receipt of the documents
required by Section 11 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Administrative Agent will make available
to the Borrowers the aggregate amount of such Revolving Loans made available to
the Administrative Agent by the Lenders by crediting such amount to the account
of the Borrowers maintained at the Administrative Agent's Head Office. The
failure or refusal of any Lender to make available to the Administrative Agent
at the aforesaid time and place on any Drawdown Date the amount of its
Commitment Percentage of the requested Revolving Loans shall not relieve any
other Lender from its several obligation hereunder to make available to the
Administrative Agent the amount of such other Lender's Commitment Percentage of
any requested Revolving Loans, including any additional Revolving Loans that may
be requested subject to the terms and conditions hereof to provide funds to
replace those not advanced by the Lender so failing or refusing. In the event of
any such failure or refusal, the Lenders not so failing or refusing shall be
entitled to a priority position for such Loans as provided in Section 12.4 and
Section 14.2(e).
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Section 2.8. ISSUANCE OF LETTERS OF CREDIT. Subject to all the terms and
conditions of this Agreement and so long as no Default or Event of Default
exists, the Letter of Credit Issuer on behalf of the Lenders will issue for the
account of the Borrowers irrevocable documentary or standby letters of credit
(the "Letters of Credit"); PROVIDED, HOWEVER, that no more than ten (10)
Letters of Credit may be outstanding at any one time, that the Letter of Credit
Exposure in effect at any time shall never exceed $50,000,000 and that at no
time shall the sum of the Letter of Credit Exposure PLUS the aggregate
outstanding principal amount of Revolving Loans, Swingline Loans and Bid Rate
Loans exceed either of the Total Commitment or the Borrowing Base Availability.
Section 2.9. REQUESTS FOR LETTERS OF CREDIT. The Borrowers may from time
to time request a Letter of Credit to be issued by providing to the Letter of
Credit Issuer and the Administrative Agent a fully-completed notice and
certification in the form of Exhibit E hereto which is actually received no
later than 10:00 a.m. (Boston time) on the third Business Day next preceding the
requested Drawdown Date for such Letter of Credit specifying (a) the amount of
the requested Letter of Credit, (b) the beneficiary thereof, (c) the requested
Drawdown Date and (d) the principal terms of the text for such Letter of Credit.
Each such notice shall also contain (i) a calculation showing that after giving
effect to the issuance of such Letter of Credit the sum of the principal amount
of Revolving Loans, Swingline Loans and Bid Rate Loans PLUS the Letter of Credit
Exposure shall not exceed either the Total Commitment or the Borrowing Base
Availability then in effect and (ii) a certification by the treasurer, assistant
treasurer or other financial officer of the Borrowers that all conditions under
Section 11 shall have been satisfied with respect to the issuance of such Letter
of Credit. Each Letter of Credit will be issued by forwarding it to the
Borrowers or to such other Person as directed in writing by the Borrowers. In
connection with the issuance of any Letter of Credit, the Borrowers shall
furnish to the Letter of Credit Issuer, in addition to the certificate in
substantially the form of Exhibit E, any customary application forms required by
the Letter of Credit Issuer.
Section 2.10. FORM AND EXPIRATION OF LETTERS OF CREDIT. Each Letter of
Credit to be issued under this Section 2 and each draft accepted or paid under
such Letters of Credit shall be issued, accepted or paid, as the case may be, by
the Letter of Credit Issuer at its principal office. No Letter of Credit shall
provide for the payment of drafts drawn thereunder, and no draft shall be
payable, at a date which is later than the earlier of (a) the date twelve months
after the date of issuance or (b) the Maturity Date. Each Letter of Credit and
each draft accepted under a Letter of Credit shall be in such form and minimum
amount, and shall contain such terms, as the Letter of Credit Issuer and the
Borrowers may agree upon at the time such Letter of Credit is issued, including
a requirement of not less than three Business Days after presentation of a draft
before payment must be made thereunder; PROVIDED, that the Letter of Credit
Issuer shall use reasonable efforts to make payment in a shorter period.
Section 2.11. LENDERS' PARTICIPATION IN LETTERS OF CREDIT. Upon the
issuance of each Letter of Credit, a participation therein, in an amount equal
to each Lender's Commitment Percentage with respect to its Revolving Loan
Commitment of the Letter of Credit Exposure thereunder, shall automatically be
deemed granted by the Letter of Credit Issuer to each Lender on the date of such
issuance and each Lender shall automatically be obligated to reimburse the
Letter of
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Credit Issuer to the extent of its Commitment Percentage with respect to its
Revolving Loan Commitment for all obligations incurred by the Letter of Credit
Issuer to third parties in respect of such Letters of Credit not reimbursed by
the Borrowers. The Administrative Agent will send to each Lender on a monthly
basis a confirmation regarding the participation in Letters of Credit
outstanding during such month.
Section 2.12. PRESENTATION. The Letter of Credit Issuer may accept or pay
any draft presented to it, regardless of when drawn and whether or not
negotiated, if such draft, the other required documents and any transmittal
advice are presented to the Letter of Credit Issuer and dated on or before the
expiration date of the Letter of Credit under which such draft is drawn. Except
insofar as instructions actually received may be given by the Borrowers in
writing expressly to the contrary with regard to, and prior to, the Letter of
Credit Issuer's issuance of any Letter of Credit for the account of the
Borrowers and such contrary instructions are reflected in such Letter of Credit,
the Letter of Credit Issuer may honor as complying with the terms of the Letter
of Credit and with this Agreement any drafts or other documents otherwise in
order signed or issued by an administrator, executor, conservator, trustee in
bankruptcy, debtor in possession, assignee for benefit of creditors, liquidator,
receiver or other legal representative of the party authorized under such Letter
of Credit to draw or issue such drafts or other documents.
Section 2.13. PAYMENT OF DRAFTS. At such time as the Letter of Credit
Issuer makes any payment on a draft presented or accepted under a Letter of
Credit, the amount of such payment shall be considered a Base Rate Loan under
Section 2.1 (regardless of whether the conditions set forth in Section 11 are
satisfied) as if the Borrowers had paid in full the amount required with respect
to the Letter of Credit by borrowing such amount under Section 2.1, except as
provided below. In the event such amount would cause the sum of the aggregate
outstanding principal amount of the Revolving Loans, Swingline Loans and Bid
Rate Loans PLUS the Letter of Credit Exposure to exceed either the Total
Commitment or the Borrowing Base Availability or in the event that any Default
or Event of Default has occurred and is continuing, Letter of Credit payments
will no longer be considered loans under Section 2.1 and the Borrowers will on
demand pay to the Letter of Credit Issuer for the benefit of the Lenders in
immediately available funds the amount of such payment.
Section 2.14. UNIFORM CUSTOMS AND PRACTICE. As to any Letter of Credit
which is a documentary letter of credit, the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and any subsequent revisions thereof approved by a Congress
of the International Chamber of Commerce and adhered to by the Letter of Credit
Issuer (the "Uniform Customs and Practice"), shall be binding on the Borrowers
and the Letter of Credit Issuer except to the extent otherwise provided herein,
in any Letter of Credit or in any other Loan Document. As to any Letter of
Credit which is a standby letter of credit, the International Standby Practices
-- ISP 98 adopted by a Congress of the International Chamber of Commerce, and
any subsequent revisions thereof approved by a Congress of the International
Chamber of Commerce and adhered to by the Letter of Credit Issuer (the "ISP
98"), will be binding on the Borrowers and the Letter of Credit Issuer except
that Rule 3.14(a) thereof is modified to substitute for the period of "thirty
calendar days" referred to therein the period of two Business Days and except to
the extent otherwise provided herein, in
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any Letter of Credit or in any other Loan Document. Anything in the Uniform
Customs and Practice or the ISP 98 to the contrary notwithstanding:
(a) Neither any Borrower nor any beneficiary of any Letter of Credit
shall be deemed an agent of the Letter of Credit Issuer.
(b) With respect to any Letter of Credit, neither the Letter of Credit
Issuer nor its correspondents shall be responsible for or shall have any duty to
ascertain:
(i) the genuineness of any signature;
(ii) the validity, form, sufficiency, accuracy, genuineness or legal
effect of any endorsements;
(iii) delay in giving, or failure to give, notice of arrival, notice of
refusal of documents or of discrepancies in respect of which the Letter of
Credit Issuer refuses the documents or any other notice, demand or protest;
(iv) the performance by any beneficiary under any Letter of Credit of such
beneficiary's obligations to any Borrower;
(v) inaccuracy in any notice received by the Letter of Credit Issuer;
(vi) the validity, form, sufficiency, accuracy, genuineness or legal
effect of any instrument, draft, certificate or other document required by such
Letter of Credit to be presented before payment of a draft, or the office held
by or the authority of any Person signing any of the same; or
(vii) failure of any instrument to bear any reference or adequate reference
to such Letter of Credit, or failure of any Person to note the amount of any
instrument on the reverse of such Letters of Credit or to surrender such Letter
of Credit or forward documents in the particular manner, if any, required by
such Letter of Credit.
(c) The occurrence of any of the events referred to in the Uniform
Customs and Practice or in the preceding clauses of this Section 2.14 shall not
affect or prevent the vesting of any of the Letter of Credit Issuer's rights or
powers hereunder or the Borrowers' obligation to make reimbursement of amounts
paid under any Letter of Credit or any draft accepted thereunder so long as the
Letter of Credit Issuer has acted without negligence or willful misconduct.
(d) The Borrowers will promptly examine each Letter of Credit (and any
amendments thereof) sent to it by the Letter of Credit Issuer on or within a
reasonable period following the time of issuance (or amendment). The Borrowers
will notify the Letter of Credit Issuer of any discrepancy or noncompliance
within three Business Days after receipt of any of the foregoing documents, the
Borrowers being conclusively deemed to have waived any claim against the Letter
of Credit Issuer and its correspondents based on such discrepancy or
noncompliance
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unless such notice is given. The Letter of Credit Issuer shall have no
obligation or responsibility to send any such Letter of Credit or any such
instrument or document to the Borrowers.
(e) In the event of any conflict between the provisions of this Agreement
and the Uniform Customs and Practice or the ISP 98, as applicable, the
provisions of this Agreement shall govern.
Section 2.15. SUBROGATION. Upon any payment by the Letter of Credit Issuer
under any Letter of Credit and until the reimbursement of the Letter of Credit
Issuer by the Borrowers with respect to such payment, the Letter of Credit
Issuer shall be entitled to be subrogated to, and to acquire and retain, the
rights which the Person to whom such payment is made may have against the
Borrowers, all for the benefit of the Lenders. The Borrowers will take such
action as the Letter of Credit Issuer may reasonably request, including using
reasonable efforts to require the beneficiary of any Letter of Credit to execute
such documents as the Letter of Credit Issuer may reasonably request, to assure
and confirm to the Letter of Credit Issuer such subrogation and such rights,
including the rights, if any, of the beneficiary to whom such payment is made in
accounts receivable, inventory and other properties and assets of any Obligor.
Section 2.16. MODIFICATION, CONSENT, ETC. If the Borrowers request or
consent in writing to any modification or extension of any Letter of Credit, or
waive any failure of any draft, certificate or other document to comply with the
terms of such Letter of Credit, and if the Letter of Credit Issuer consents
thereto in writing, the Letter of Credit Issuer shall be entitled to rely on
such request, consent or waiver. This Agreement shall be binding upon the
Borrowers with respect to such Letter of Credit as so modified or extended, and
with respect to any action taken or omitted by the Letter of Credit Issuer
pursuant to any such request, consent or waiver.
Section 2.17. LETTER OF CREDIT FEES. The Borrowers will pay to the
Administrative Agent for the benefit of the Letter of Credit Issuer (i) an
annual fronting fee of one-eighth of one percent (0.125%) of the initial stated
amount of each Letter of Credit, payable upon the issuance of each Letter of
Credit by the Letter of Credit Issuer and (ii) customary service charges and
reasonable expenses for its services in connection with the Letters of Credit at
the times and in the amounts from time to time in effect in accordance with its
general rate structure, including fees and expenses relating to issuance,
amendment, negotiation, cancellation and similar operations. The Borrowers also
will pay to the Administrative Agent for the benefit of the Lenders an annual
fee equal to the Applicable Margin from time to time in effect for Libor Rate
Loans, payable quarterly in arrears, on the average daily amount of the Letter
of Credit Exposure, which fee shall be allocated among the Lenders in accordance
with their respective Commitment Percentages therein.
Section 3. REPAYMENT OF THE REVOLVING LOANS.
Section 3.1. STATED MATURITY. The Borrowers promise to pay on the Maturity
Date, and there shall become absolutely due and payable on the Maturity Date,
all of the Revolving Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
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Section 3.2. MANDATORY PREPAYMENTS. If at any time the sum of the
aggregate outstanding principal amount of the Revolving Loans, Swingline Loans
and Bid Rate Loans PLUS the Letter of Credit Exposure exceeds either the Total
Commitment or the Borrowing Base Availability then in effect, then the Borrowers
shall immediately pay the amount of such excess to the Administrative Agent for
application (i) first as required under Section 4.2(c)(iv), (ii) second to the
Revolving Loans until such amount has been applied in full or the Revolving
Loans have been paid in full, (iii) third, to cash collateralize with the
Administrative Agent that portion of the Letter of Credit Exposure equal to the
amount of the remainder of such excess and (iv) fourth, to outstanding Bid Rate
Loans, in accordance with each such Loan's proportional share of the aggregate
amount of all outstanding Bid Rate Loans. In addition, if at any time a Lender
for which the Administrative Agent shall have advanced a portion of a Revolving
Loan under Section 14.2(f) shall fail to reimburse the Administrative Agent for
such advance by the time required under Section 14.2(f), then immediately upon
their receipt of written notice thereof from the Administrative Agent, the
Borrowers shall pay to the Administrative Agent the amount of such advance plus
interest thereon, if any, at the rate provided in Section 2.5(a), together with
any amounts payable pursuant to Section 4.7.
Section 3.3. OPTIONAL PREPAYMENTS. The Borrowers shall have the right, at
their election, to prepay the outstanding amount of the Revolving Loans, as a
whole or in part, at any time without penalty or premium at a price equal to the
principal amount prepaid plus accrued interest thereon to the date of payment;
PROVIDED, that the full or partial prepayment of the outstanding amount of any
Libor Rate Loans pursuant to this Section 3.3 may be made only on the last day
of the Interest Period relating thereto unless the Borrowers shall
simultaneously pay any amounts due on account of such prepayment pursuant to
Section 4.7. The Borrowers shall give the Administrative Agent, no later than
10:00 a.m., Boston time, at least one Business Day's prior written notice of any
prepayment pursuant to this Section 3.3 of any Base Rate Loans and at least
three Libor Business Days' notice of any proposed repayment pursuant to this
Section 3.3 of Libor Rate Loans, in each case specifying the proposed date of
payment of the Revolving Loans and the principal amounts to be paid.
Section 3.4. PARTIAL PREPAYMENTS. Each partial prepayment of the Revolving
Loans under Section 3.2 and Section 3.3 shall be the amount of not less than
$1,000,000 and in an integral multiple of $100,000, 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 Borrowers, first to the principal of Base Rate Loans and then to the
principal of Libor Rate Loans.
Section 3.5. EFFECT OF PREPAYMENTS. Amounts of the Revolving Loans prepaid
under Section 3.2 or Section 3.3 may be reborrowed as provided in Section 2.
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Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. CONVERSION OPTIONS.
(a) The Borrowers may elect from time to time to convert all or a portion
of any outstanding Revolving Loan to a Revolving Loan of another Type; PROVIDED
that (i) with respect to any such conversion of a Libor Rate Loan to a Base Rate
Loan, the Borrowers shall give the Administrative Agent written notice of such
election on or prior to 10:00 a.m. (Boston time) on the Business Day next
preceding the date of the conversion, and such conversion shall only be made on
the last day of the Interest Period with respect to such Libor Rate Loan unless
the Borrowers pay the Administrative Agent for the account of the Lenders the
amounts required under Section 4.7; (ii) with respect to any such conversion of
a Base Rate Loan to a Libor Rate Loan, the Borrowers shall give the
Administrative Agent written notice of such election, on or before 10:00 a.m.
(Boston time) on the third Business Day next preceding the date of the
conversion, the principal amount of the Loan so converted shall be in a minimum
aggregate amount of $1,000,000 and in an integral multiple of $100,000 and,
after giving effect to the conversion of such Revolving Loan, there shall be no
more than five (5) Libor Rate Loans having different Interest Periods
outstanding at any one time; and (iii) no Revolving Loan may be converted into a
Libor Rate Loan when any Default or Event of Default has occurred and is
continuing. All or any part of outstanding Revolving Loans of any Type may be
converted as provided herein, PROVIDED that no partial conversion shall result
in a Base Rate Loan or a Libor Rate Loan in an aggregate principal amount of
less than $1,000,000 and that the aggregate principal amount of each Loan shall
be in an integral multiple of $100,000. On the date on which such conversion is
being made, each Lender shall take such action as is necessary to transfer its
Commitment Percentage of such Revolving Loans to its Domestic Lending Office or
its Libor Lending office, as the case may be. Each Conversion Request relating
to the conversion of a Base Rate Loan to a Libor Rate Loan shall be irrevocable
by the Borrowers. The Administrative Agent shall notify the Lenders promptly
following its receipt of each Conversion Request.
(b) All or a portion of any Revolving Loans of any Type may be continued
as such Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrowers with the notice and other provisions contained in
Section 4.1; PROVIDED that no Libor 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 first
Interest Period relating thereto ending during the continuance of any Default or
Event of Default of which the officers of the Administrative Agent active upon
the Borrowers' account have actual knowledge. The Administrative Agent shall
notify the Lenders promptly when any such automatic conversion contemplated by
this Section 4.1 is scheduled to occur.
(c) In the event that the Borrowers do not notify the Administrative
Agent of their 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.
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Section 4.2. SWINGLINE LOANS.
(a) AVAILABILITY. Subject to the terms and conditions of this
Agreement and so long as no Default or Event of Default is known by Swingline
Lender to exist, the Swingline Lender agrees to make Swingline Loans to the
Borrowers, jointly and severally, from time to time from the Initial Closing
Date to, but not including, the Swingline Termination Date; PROVIDED, that the
aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested) at any time, shall not exceed the lesser of (i)
the Total Commitment in effect at such time LESS the sum of (A) all outstanding
Revolving Loans at such time, (B) the Letter of Credit Exposure at such time,
and (C) all outstanding Bid Rate Loans at such time, (ii) the Borrowing Base
Availability and (iii) the Swingline Commitment at such time. Swingline Loans
hereunder may be used in anticipation of borrowing Revolving Loans and for other
short-term requirements and shall be repaid in accordance with the terms hereof.
Each Swingline Loan must be for an amount equal to at least $1,000,000 and in an
integral multiple of $100,000 and shall be evidenced by the Swingline Note. The
Swingline Lender shall initiate the transfer of funds representing the Swingline
Loan to the Borrower by 4:00 p.m. (Boston time) on the Business Day of the
requested borrowing, so long as the Swingline Loan has been requested by the
Borrower no later than 1:00 p.m. (Boston time) on such Business Day. In no event
shall the number of Swingline Loans outstanding at any time exceed three (3).
All Swingline Loans shall bear interest at the Base Rate.
(b) REPAYMENT. The Borrowers hereby, jointly and severally,
absolutely and unconditionally promise to repay the outstanding principal amount
of each Swingline Loan and all accrued interest and charges thereon (the
"Swingline Loan Amount") on the earliest to occur of: (i) the end of the
calendar week in which the Swingline Loan is advanced, (ii) the Swingline
Termination Date or (iii) immediately upon demand by the Swingline Lender;
provided, Borrowers shall have the right to prepay Swingline Loans without
penalty or any prepayment charge.
(c) REFUNDING AND CONVERSION OF SWINGLINE LOANS TO REVOLVING LOANS.
(i) On the maturity of each Swingline Loan (which shall be
no longer than the period for repayment set forth above in Section 4.2(b)), the
Borrowers shall be deemed to have requested on such date a Revolving Loan
comprised solely of a Base Rate Loan in a principal amount equal to the
Swingline Loan Amount in order to repay such Swingline Loan. Such refundings of
the Swingline Loan through the funding of such Revolving Loans shall be made by
the Lenders in accordance with their respective Commitment Percentages
applicable to Revolving Loans and shall thereafter be reflected as Revolving
Loans of the Lenders on the books and records of the Administrative Agent.
(ii) If a Default or an Event of Default has occurred and is
continuing, all Swingline Loans shall be refunded by the Lenders on demand by
the Swingline Lender, in which case the Borrowers shall be deemed to have
requested on such date of demand a Revolving Loan comprised solely of a Base
Rate Loan in a principal amount equal to the Swingline Loan Amount for such
Swingline Loans. Such refundings of the Swingline Loans
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through the funding of such Revolving Loans shall be made by the Lenders in
accordance with their respective Commitment Percentages applicable to Revolving
Loans and shall thereafter be reflected as Revolving Loans of the Lenders on the
books and records of the Administrative Agent.
(iii) Each Lender shall fund its respective Commitment
Percentage of Revolving Loans as required to so repay Swingline Loans
outstanding to the Swingline Lender upon such deemed request or demand by the
Swingline Lender but in no event later than 2:00 p.m. (Boston time) on the next
succeeding Business Day after such deemed request or demand is made. No Lender's
obligation to fund its respective Commitment Percentage of the repayment of a
Swingline Loan shall be affected by any other Lender's failure to fund its
Commitment Percentage of such repayment, nor shall any Lender's Commitment
Percentage be increased as a result of any such failure of any other Lender to
fund its Commitment Percentage. To the extent any Lender does not fund its
respective Commitment Percentage of any Revolving Loan to the Borrowers pursuant
to this Section, such Lender shall be deemed a Delinquent Lender and the
Borrowers shall repay such amounts to the Swingline Lender in accordance with
the provisions of Sections 3.2 and 14.2(f) as if such Loan were a Revolving Loan
for which a Lender did not advance its share to the Administrative Agent. The
Borrowers hereby authorize the Administrative Agent to charge any account
maintained with the Swingline Lender (up to the amount available therein) in
order to immediately pay the Swingline Lender the amount of any Swingline Loan
Amounts when due under Section 4.2(b) above (x) to the extent amounts received
from the Lenders are not sufficient to repay in full the outstanding Swingline
Loans required to be refunded pursuant to Section 4.2(c)(i) or (ii) and (y) to
satisfy the Borrowers' obligations pursuant to clause (iv) below. If any portion
of any such amount paid to the Swingline Lender shall be recovered by or on
behalf of the Borrowers from the Swingline Lender in bankruptcy or otherwise,
the loss of the amount so recovered shall be ratably shared among all the
Lenders.
(iv) If at any time the Borrowers receive notice from the
Swingline Lender that the aggregate principal amount of all Revolving Loans
outstanding, PLUS the aggregate principal amount of all Swingline Loans
outstanding (including the Swingline Loan for which demand for payment is then
made by the Swingline Lender pursuant to this subsection), PLUS the Letter of
Credit Exposure PLUS all outstanding Bid Rate Loans equals or exceeds the lesser
of (A) Total Commitment at such time and (B) the Borrowing Base Availability at
such time, the Borrowers shall repay the amount of such excess upon demand by
the Swingline Lender, which payment shall be applied first to the Swingline
Loans and thereafter in the order set forth in Section 3.2 hereof.
(v) Each Lender acknowledges and agrees that its obligation
to refund Swingline Loans with Revolving Loans in accordance with the terms of
this Section 4.2 is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, in any event, non-satisfaction of any
conditions set forth in this Agreement pertaining to advances of Revolving Loans
hereunder. Further, each Lender agrees and acknowledges that if, prior to the
refunding of any outstanding Swingline Loans pursuant to this Section 4.3, one
of the events described in Section 12.1(g)-(i) shall have occurred, each Lender
will, on the date the applicable Revolving Loan would have been made pursuant to
Section 4.2(c)(i) or (ii) hereof,
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purchase an undivided participating interest in the Swingline Loan to be
refunded in an amount equal to its Commitment Percentage of such Swingline Loan
Amount. Each Lender will immediately transfer to the Swingline Lender, in
immediately available funds, the amount of its participation. Whenever, at any
time after the Swingline Lender has received from any Lender such Lender's
participating interest in a Swingline Loan, the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded).
(vi) Each Lender's Commitment Percentage applicable to any
Swingline Loan shall be identical to its Commitment Percentage applicable to
Revolving Loans.
Section 4.2A. THE BID RATE ADVANCES.
(a) Each Lender severally agrees that, on the terms and conditions
set forth in this Agreement, the Borrowers may request and receive Bid Rate
Advances under this Section 4.2A from time to time on any Business Day during
the period from the date hereof until the date occurring 60 days prior to the
Maturity Date in the manner set forth below; PROVIDED, HOWEVER, that:
(i) following the making of each Bid Rate Advance, the
maximum aggregate principal amount of all Revolving Loans then
outstanding, PLUS the aggregate amount of all Swingline Loans then
outstanding, PLUS the aggregate amount of all Bid Rate Advances then
outstanding (including the requested Bid Rate Advance), PLUS the
Letter of Credit Exposure at such time shall not exceed the lesser of
(A) the Total Commitment in effect at such time or (B) the Borrowing
Base Availability in effect at such time;
(ii) at no time shall the aggregate amount of all Bid Rate
Advances then outstanding (including the requested Bid Rate Advance)
exceed the Bid Rate Maximum Amount; and
(iii) at the time the Borrowers request a Bid Rate Advance and
after giving effect to the making thereof, the Debt Rating is
Investment Grade or better and no Default or Event of Default has
occurred and is continuing.
(b) The procedures for the solicitation and acceptance of Bid Rate
Loans are set forth below (with the references to time of day meaning Boston,
Massachusetts time):
(i) The Borrower may request a Bid Rate Advance under this
Section 4.2A(b) by giving the Administrative Agent irrevocable notice,
in the form attached hereto as Exhibit F (a "Bid Rate Advance
Borrowing Notice"), specifying the date and aggregate amount of the
proposed Bid Rate Advance, the maturity date for repayment of each Bid
Rate Loan to be made as part of such Bid Rate Advance (which maturity
date may not be earlier than, in the case of an
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Absolute Rate Auction, the date occurring one day, and in the case of
an Indexed Rate Auction, the date occurring seven days, after the date
of the related Bid Rate Advance or later than, in either case, the
earlier of the day occurring 180 days after the date of such Bid Rate
Advance and the day which is thirty (30) days prior to Maturity Date),
and any other terms to be applicable to such Bid Rate Advance, not
later than 11:00 a.m. (A) in the case of an Absolute Rate Auction, one
(1) Business Day prior to the date of the proposed Bid Rate Advance,
and (B) in the case of an Indexed Rate Auction, four (4) Business Days
prior to the date of the proposed Bid Rate Advance. The Administrative
Agent shall, promptly following its receipt of a Bid Rate Advance
Borrowing Notice under this Section 4.2A(b), notify each Lender of
such request by sending such Lender a copy of such Bid Rate Advance
Borrowing Notice.
(ii) Each Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more Bid Rate Loans to the
Borrowers, jointly and severally, as part of such proposed Bid Rate
Advance at a rate or rates of interest specified by such Lender in its
sole discretion, by providing written notice to the Administrative
Agent (which shall give prompt notice thereof to the Borrower), before
10:00 a.m. (or if such Lender is the Administrative Agent, before 9:30
a.m.) on (A) the date of such proposed Bid Rate Advance, in the case
of an Absolute Rate Auction, and (B) the date that is three Business
Days before the date of such proposed Bid Rate Advance, in the case of
an Indexed Rate Auction, in the form of Exhibit G attached hereto (the
"Competitive Bid Notice") of the minimum amount and maximum amount of
each Bid Rate Loan which such Lender would be willing to make as part
of such proposed Bid Rate Advance (which amounts may, subject to the
proviso to the first sentence of Section 4.2A(a), exceed such Lender's
Revolving Loan Commitment amount), the rate or rates of interest
therefor and such Lender's Lending Installation with respect to such
Bid Rate Loan.
Any Competitive Bid Notice shall be disregarded and given no
effect if it contains qualifying or conditional language, proposes
terms and conditions other than or in addition to those set forth in
the applicable Bid Rate Advance Borrowing Notice or arrives after the
time set forth above for its receipt by Administrative Agent.
(iii) The Borrowers shall, in turn, before (A) 11:00 a.m. on
the date of such proposed Bid Rate advance, in the case of an Absolute
Rate Auction, and (B) 10:00 a.m. two Business Days before the date of
such proposed Bid Rate Advance, in the case of an Indexed Rate Auction
for a Bid Rate Advance, either:
(x) cancel such Bid Rate Advance by giving the
Administrative Agent notice to that effect, or
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(y) accept one or more of the offers made by any Lender
or Lenders pursuant to Section 4.2A(b) above, in its sole
discretion and subject to Section 4.2A(d), by giving notice, in
the form of EXHIBIT H attached hereto, to the Administrative Agent
of the amount of each Bid Rate Loan to be made by each Lender as
part of such Bid Rate Advance, and reject any remaining offers
made by Lenders pursuant to Section 4.2A(b)(ii) by giving the
Administrative Agent notice to that effect.
(iv) If the Borrowers notify the Administrative Agent that
such Bid Rate Advance is canceled pursuant to Section 4.2A(b)(iii)(x)
above, the Administrative Agent shall give prompt notice thereof to
the Lenders and such Bid Rate Advance shall not be made.
(v) If the Borrowers accept one or more of the offers made
by any Lender or Lenders pursuant to Section 4.2A(b)(iii)(y) above,
the Administrative Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in Section 4.2A(b)(ii) of the
date, and aggregate amount of such Bid Rate Advance and whether or not
any offer or offers made by such Lender pursuant to Section
4.2A(b)(ii) have been accepted by the Borrowers and (B) each Lender
that is to make a Bid Rate Loan as part of such Bid Rate Advance, of
the amount of each Bid Rate Loan to be made by such Lender as part of
such Bid Rate Advance. Each Lender that is to make a Bid Rate Loan as
part of such Bid Rate Advance shall, not later than the Specified
Remittance Time on the date of such Bid Rate Advance specified in the
notice received from the Administrative Agent pursuant to clause (A)
of the preceding sentence, make available for the account of its
Lending Installation to the Administrative Agent at the relevant
Payment Office such Lender's portion of such Bid Rate Advance, in same
day funds. After receipt by the Administrative Agent of such funds and
provided that the conditions in Sections 10 and 11 hereof are
satisfied, the Administrative Agent will make such funds available to
the Borrowers upon execution and delivery by Borrowers of a Bid Rate
Note evidencing such Bid Rate Loan. Promptly after each Bid Rate
Advance the Administrative Agent will notify each Lender of the amount
and rates of the Bid Rate Advance.
(vi) If the Borrowers accept one or more of the offers made
by any Lender or Lenders pursuant to Section 4.2A(b)(iii)(y) above and
fail to borrow any Bid Rate Loan so accepted, the Borrowers, jointly
and severally, shall indemnify the Lender funding such Loan against
any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to
fund or maintain such unborrowed Bid Rate Loans, including, without
limitation, compensation as provided in Section 4.7.
(vii) A Bid Rate Advance fee of $750.00 shall be payable by
the Borrowers to the Administrative Agent with respect to and
concurrently with the delivery of each Bid Rate Advance Borrowing
Notice.
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(c) Each Bid Rate Advance shall be in an aggregate amount not less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof, and,
following the making of each Bid Rate Advance, the Borrowers shall be in
compliance with the limitation set forth in the proviso to the first sentence of
Section 4.2A(a).
(d) Each acceptance by the Borrowers pursuant to Section
4.2A(b)(iii)(y) of the offers made in response to a Bid Rate Advance Borrowing
Notice shall be treated as an acceptance of such offers in ascending order of
the rates or margins, as applicable, at which the same were made but if, as a
result thereof, two or more offers at the same such rate or margin would be
partially accepted, then the amounts of the Bid Rate Loans in respect of which
such offers are accepted shall be treated as being the amounts which bear the
same proportion to one another as the respective amounts of the Bid Rate Loans
so offered bear to one another but, in each case, rounded as the Administrative
Agent may consider necessary to ensure that the amount of each such Bid Rate
Loan is $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(e) Within the limits and on the conditions set forth in this
Section 4.2A, the Borrowers may from time to time borrow under this Section
4.2A, repay pursuant to Section 4.2A(f) below, and reborrow under this Section
4.2A.
(f) The Borrowers hereby absolutely and unconditionally promise to
pay to the Administrative Agent for the account of each Lender which has made a
Bid Rate Loan to it, on the maturity date of such Bid Rate Loan (such maturity
date being that specified by the Borrowers for repayment of such Bid Rate Loan
in the related Bid Rate Advance Borrowing Notice), or, such earlier date to
which the maturity of such Bid Rate Loan has been accelerated hereunder, the
then unpaid principal amount of such Bid Rate Loan and all accrued but unpaid
interest thereon. The Borrowers shall have no right to prepay any principal
amount of any Bid Rate Loan unless, and then only on the terms, specified by the
Borrowers for such Bid Rate Loan in the related Bid Rate Advance Borrowing
Notice and subject to Section 4.7.
(g) The Borrowers shall pay interest on the unpaid principal amount
of each Bid Rate Loan made to them, from the date of such Bid Rate Loan to the
date the principal amount of such Bid Rate Loan is repaid in full, at the rate
of interest for such Bid Rate Loan specified by the Lender making such Bid Rate
Loan in the related notice submitted by such Lender pursuant to Section
4.2A(b)(ii), payable on the interest payment date or dates specified by the
Borrowers for such Bid Rate Loan in the related Bid Rate Advance Borrowing
Notice and on any date on which such Bid Rate Loan is prepaid, whether by
acceleration or otherwise, and at maturity. In the event the term of any Bid
Rate Loan shall be longer than three months, interest thereon shall be payable
not less frequently than once each three-month period during such term. Interest
on Bid Rate Loans shall be calculated for actual days elapsed on the basis of a
360-day year.
Section 4.3. FUNDS FOR PAYMENTS.
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(a) All payments of principal, interest, Letter of Credit reimbursement
payments, Letter of Credit fees, Facility fees, Administrative Agent's fees,
closing fees and any other amounts due hereunder or under any of the other Loan
Documents shall be made to the Administrative Agent, for the respective accounts
of the Lenders, the Letter of Credit Issuer and the Administrative Agent, as the
case may be, at the Administrative Agent's Head Office, in each case in
immediately available funds. The Administrative Agent is hereby authorized to
charge the account of the Borrowers with Fleet, on the dates when the amount
thereof shall become due and payable, with the amounts of the principal of and
interest on the Loans, Letter of Credit reimbursement payments, Letter of Credit
fees, commitment fees and Facility Fees and other fees owing to the
Administrative Agent and/or the Lenders under the Loan Documents. The
Administrative Agent may charge the account of the Borrowers with Fleet, with
all other fees, charges, expenses and other amounts owing to the Administrative
Agent and/or the Lenders under the Loan Documents.
(b) All payments by each Obligor hereunder and under any of the other
Loan Documents shall be made without setoff or counterclaim and free and clear
of and 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 such Obligor is
compelled by law to make such deduction or withholding. If any such obligation
is imposed upon any Obligor with respect to any amount payable by it hereunder
or under any of the other Loan Documents, the Obligor will pay to the
Administrative Agent, for the account of the Lenders or (as the case may be) the
Administrative 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 Lenders or the Administrative Agent to
receive the same net amount which the Lenders or the Administrative Agent would
have received on such due date had no such obligation been imposed upon the
Obligor. The Obligor will deliver promptly to the Administrative Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Obligor hereunder or under
such other Loan Document.
(c) If any Lender is not created or organized in, or under the laws of,
the United States of America or any state thereof, such Lender represents and
warrants to the Administrative Agent and the Obligors that under applicable laws
and treaties no taxes will be required to be withheld by the Administrative
Agent or the Obligors with respect to any payments to be made to such Lender in
respect of the Obligations and agrees that it shall deliver to the Borrowers and
the Administrative Agent the forms described in one of the following two
clauses:
(i) Two fully completed and duly executed United States Internal Revenue
Service Forms 1001 or 4224 or any successor form, as the case may be, certifying
that such Lender is entitled to receive payments of the Obligations payable to
it without deduction of any federal withholding taxes; or
(ii) A statement, executed by such Lender under penalty of perjury,
certifying that such Lender is not a "bank" within the meaning of section
881(c)(3)(A) of the Code and two
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fully completed and duly executed United States Internal Revenue Service Forms
W-8 or any successor form, certifying that such Lender is not a "United States
person" within the meaning of section 7701(a)(30) of the Code.
Each Lender that delivers any form or statement pursuant to this Section 4.3(c)
further undertakes to renew such forms and statements by delivering to the
Borrowers and the Administrative Agent any updated form, successor form or other
certification, as the case may be, on or before the date that any form or
statement previously delivered pursuant to this Section 4.3(c) expires or
becomes obsolete or after the occurrence of any event requiring a change in such
most recent form or statement. If at any time the Borrowers and the
Administrative Agent have not received all forms and statements (including any
renewals thereof) required to be provided by any Lender pursuant to this Section
43(c), or if any Lender shall have failed to comply with applicable
certification, information, documentation or reporting requirements, if such
compliance is required by statute or regulation as a precondition to relief or
exemption from such tax, then the obligation of the applicable Obligors to pay
the amounts described in the second sentence of Section 4.3(b) shall not apply
with respect to any amount of federal withholding taxes required to be withheld
from payments of the Obligations to such Lender PROVIDED that such withholding
is solely the result of the non-delivery of such forms or such failure to comply
with such applicable requirements.
Section 4.4. COMPUTATIONS. All computations of interest on the Libor Rate
Loans and fees shall be based on a 360-day year and paid for the actual number
of days elapsed. All computations of interest on the Base Rate Loans or
Swingline Loans shall be based on a 365-day year (or, if applicable, a 366-day
year) and paid for the actual number of days elapsed. All computations of
interest on Bid Rate Loans shall be based on a 360-day year and paid for the
actual number of days elapsed unless a Lender's response to a Bid Rate Advance
Borrowing Notice specifies a different period. Except as otherwise provided in
the definition of the term "Interest Period" with respect to Libor 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 Revolving Loans, Swingline Loans
and Bid Rate Loans as reflected on the records of the Administrative Agent from
time to time shall be considered PRIMA FACIE evidence of such amount.
Section 4.5. INABILITY TO DETERMINE LIBOR RATE. In the event that, prior
to the commencement of any Interest Period relating to any Libor Rate Loan, the
Administrative Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Libor Rate for such Interest Period, the
Administrative Agent shall forthwith give notice of such determination (which
shall be conclusive and binding on the Borrowers, each Guarantor through its
guarantee hereunder, and the Lenders) to the Borrowers and the Lenders. In such
event (a) any Loan Request with respect to Libor Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans and
(b) each Libor 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
Lenders to make Libor Rate Loans shall be suspended until the Administrative
Agent determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Administrative Agent shall so notify the Borrowers and the
Lenders.
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Section 4.6. ILLEGALITY. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Libor Rate Loans, such Lender shall forthwith give notice of
such circumstances to the Borrowers and the other Lenders and thereupon (a) the
commitment of such Lender to make Libor Rate Loans or convert Revolving Loans of
another Type to Libor Rate Loans shall forthwith be suspended and (b) the
portion of the Libor Rate Loans then outstanding which are made by such Lender
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Libor Rate Loans or within such earlier
period as may be required by law.
Section 4.7. ADDITIONAL INTEREST. If any Libor Rate Loan or any portion
thereof is repaid or terminated (including without limitation by conversion to a
Base Rate Loan) for any reason on a date which is prior to the last Libor
Business Day of the Interest Period applicable to such Libor Rate Loan, the
Borrowers will pay to the Administrative Agent for the account of the Lenders in
accordance with their respective Commitment Percentages therein, in addition to
any amounts of interest otherwise payable hereunder, an amount equal to the
losses (excluding lost profits) incurred by such Lender as a result of such
early repayment or other termination of a Libor Rate Loan. The determination by
each Lender of the amount of such losses shall, be PRIMA FACIE evidence thereof.
For purposes of this Section 4.7, if any Libor Rate Loan or portion thereof
requested or deemed to have been requested by the Borrowers is not outstanding
on the first day of the Interest Period applicable thereto other than for
reasons described in Section 4.5, the Borrowers shall be deemed to have
terminated such Libor Rate Loan or portion thereof.
Section 4.8. ADDITIONAL COSTS, ETC. If any introduction, adoption or
change after the Initial Closing Date in any 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 Lender or the Administrative Agent by any central bank
or other fiscal, monetary or other authority (whether or not having the force of
law), shall:
(a) subject any Lender or the Administrative 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 Lender's Commitment, the
Letter of Credit Exposure, or the Loans (other than taxes based upon or measured
by the income or profits of such Lender or the Administrative Agent), or
(b) materially change the basis of taxation (except for changes in taxes
on income or profits) of payments to any Lender of the principal of or the
interest on any Loans, the Letter of Credit Exposure or any other amounts
payable to any Lender under this Agreement or the other Loan Documents, or
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(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Agreement) 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 Lender,
or
(d) impose on any Lender or the Administrative Agent any other conditions
or requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Letters of Credit, such Lender's Commitment, or any class of loans or
commitments of which any of the Loans or such Lender's Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans, Letters of Credit
or such Lender's Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to such Lender or the Administrative Agent hereunder on account of such
Lender's Commitment or any of the Loans or Letters of Credit, or
(iii) to require such Lender or the Administrative 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 Lender or the
Administrative Agent from the Borrowers hereunder, then, and in each such case,
the Borrowers will, upon demand made by such Lender or (as the case may be) the
Administrative Agent at any time and from time to time and as often as the
occasion therefor may arise, pay to such Lender or the Administrative Agent such
additional reasonable amounts as such Lender or the Administrative Agent shall
determine in good faith and certify in a notice to the Borrowers in reasonable
detail to be sufficient to compensate such Lender or the Administrative Agent
for such additional cost, reduction, payment or foregone interest or other sum;
PROVIDED, HOWEVER, that the Borrowers shall not be required under this Section
4.8 to reimburse any Lender or the Administrative Agent for incremental
additions to administrative overhead and other similar internal costs of
regulatory compliance. Each Lender and the Administrative Agent shall allocate
the additional costs, reductions, payments or foregone interest or other sums
for which it is entitled to compensation under this Section 4.8 among its
customers in good faith and on an equitable basis.
Section 4.9. CAPITAL ADEQUACY. If after the Initial Closing Date any
Lender determines that the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) or change in the interpretation thereof by a court or governmental
authority with appropriate jurisdiction affects the amount of capital required
or expected to be maintained by any Lender or any corporation controlling such
Lender and such Lender reasonably determines that the amount of capital so
required or expected to be maintained is increased by or based upon the
existence of Revolving Loans or Letters of Credit made or deemed to be made or
committed to be made under this Agreement, then such Lender may notify the
Borrowers of such fact, and the Borrowers shall pay to such Lender or the
Administrative Agent from time to time on demand, as an additional fee payable
hereunder, such
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reasonable amount as such Lender shall determine in good faith and certify in a
notice to the Borrowers in reasonable detail to be an amount that will
adequately compensate such Lender in light of these circumstances for its
increased costs of maintaining such capital. Each Lender shall allocate such
cost increases among its customers in good faith and on an equitable basis.
Section 4.10. INTEREST ON OVERDUE AMOUNTS. Overdue principal, Letter of
Credit reimbursement payments 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 three percent (3%) above the rate otherwise in effect on the
applicable Loans until such amount shall be paid in full (after as well as
before judgment).
Section 4.11. CERTIFICATE. A certificate setting forth any amounts payable
pursuant to Section 4.7, Section 4.8, Section 4.9 or Section 4.10 and a brief
explanation of such amounts which are due, submitted by any Lender or the
Administrative Agent to the Borrowers, shall be PRIMA FACIE evidence that such
amounts are due and owing.
Section 4.12. REPLACEMENT OF A LENDER. In the event that any Lender (the
"Affected Lender"):
(a) fails to make or maintain any Libor Rate Loans because any present or
future law, regulation, treaty or directive or in the interpretation or
application thereof shall make it unlawful for such Lender to make or maintain
any such Libor Rate Loans;
(b) is not entitled to receive payments of the Obligations payable to it
without deduction of any federal withholding taxes; or
(c) demands payment of any material amounts under the provisions of
Section 4.8 or Section 4.9;
then, so long as no Event of Default exists, the Borrowers shall have the right
to direct that the Affected Lender be removed from the lending group, in which
event, (a) such Affected Lender's Commitment may be assigned and transferred to
a replacement Eligible Assignee (which may be an existing Lender) that is
reasonably satisfactory to the Administrative Agent and the Borrower (the
"Replacement Lender") or (b) if a Replacement Lender is not engaged and the sum
of the aggregate outstanding principal amount of the Loans PLUS the Letter of
Credit Exposure exceeds the Total Commitment (as reduced by such removal), then
the Borrowers shall immediately pay the amount of such excess (the "Excess
Amount") to the Administrative Agent for application in the order set forth in
Section 3.2 with respect to Mandatory Prepayments. The removal of any Affected
Lender that has performed its obligations hereunder shall be deemed an early
termination of any Libor Rate Loan to the extent of such Affected Lender's
portion thereof, and the Borrowers will pay to such Affected Lender any
resulting amounts due under Section 4.7. Until the removal of an Affected Lender
in accordance with the foregoing provisions of this Section 4.12 is complete,
the Borrowers shall continue to pay to such Affected Lender any Obligations as
they become due and payable.
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In the event a Replacement Lender is identified that is reasonably
satisfactory to the Administrative Agent and the Borrowers prior to the removal
of the Affected Lender, the Replacement Lender shall purchase the interests of
the Affected Lender in the Revolving Loans and the Letters of Credit Exposure
and shall assume the obligations of the Affected Lender hereunder and under the
other Loan Documents upon execution by the Replacement Lender of an Assignment
and Acceptance in compliance with the requirements of Section 18 and execution
of such other documents as may be reasonably requested by the Administrative
Agent to enable the Replacement Lender to share in the benefits of the rights
created by the Loan Documents. Such assignment by any Affected Lender who has
performed its obligations hereunder shall be deemed an early termination of any
Libor Rate Loan to the extent of such Affected Lender's portion thereof, and the
Borrowers will pay to such Affected Lender any resulting amounts due under
Section 4.7. In the event that any interest, fees or other amounts remain
outstanding to the Affected Lender and are not paid by the Replacement Lender in
connection with any such assignment, the Borrowers shall pay such amounts to the
Affected Lender upon the consummation of such assignment. Until the consummation
of an assignment in accordance with the foregoing provisions of this Section
4.12, the Borrowers shall continue to pay to the Affected Lender any Obligations
as they become due and payable.
Section 4.13. MAXIMUM LAWFUL INTEREST RATE. All Loan Documents are
expressly limited so that in no event, including the acceleration of the
maturity of the Obligations, shall the amount paid or agreed to be paid in
respect of interest on the Obligations exceed the maximum permissible amount
under applicable law, as in effect on the date hereof and as subsequently
amended or modified to allow a greater amount of interest to be paid under the
Loan Documents. If for any reason the amount in respect of interest required by
the Loan Documents exceeds such maximum permissible amount, the obligation to
pay interest under the Loan Documents shall be automatically reduced to such
maximum permissible amount and any amounts in respect of interest previously
paid to the Lenders in excess of such maximum permissible amount shall be
automatically applied to reduce the amount of the applicable Loans and Letter of
Credit Exposure, and once the Obligations are paid in full, any excess will be
returned to the Borrowers.
Section 5. GUARANTEES.
Section 5.1. GUARANTEES OF OBLIGATIONS. Each Guarantor unconditionally
jointly and severally guarantees that the Obligations will be performed and will
be paid in full in cash when due and payable, whether at the stated or
accelerated maturity thereof or otherwise, this guarantee being a guarantee of
payment and not of collectability and being absolute and in no way conditional
or contingent. In the event that any part of the Obligations shall not have been
so paid in full when due and payable, each Guarantor will, immediately upon
written notice by the Administrative Agent or, without notice, immediately upon
the occurrence of an Event of Default under Section 12.1(g), 12.1 (h) or
12.1(1), pay or cause to be paid to the Administrative Agent for the account of
each applicable Lender in accordance, where applicable, with the Lenders'
respective Commitment Percentages the amount of such Obligations which are then
due and payable and unpaid. The obligations of each Guarantor hereunder shall
not be affected by the invalidity, unenforceability or irrecoverability of any
of the Obligations as against any Obligor, any other guarantor thereof or any
other Person. For purposes hereof, the Obligations shall be due and
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payable when and as the same shall be due and payable under the terms of this
Agreement or any other Loan Document notwithstanding the fact that the
collection or enforcement thereof may be stayed or enjoined under the federal
Bankruptcy Code or other applicable law.
Section 5.2. CONTINUING OBLIGATION. Each Guarantor acknowledges that the
Lenders have entered into this Agreement (and, to the extent that the Lenders
may enter into any future Loan Document, will have entered into such agreement)
in reliance on this Section 5 being a continuing irrevocable agreement, and such
Guarantor agrees that its guarantee may not be revoked in whole or in part. The
obligations of the Guarantors hereunder shall terminate when the commitment of
the Lenders to extend credit under this Agreement shall have terminated and all
of the Obligations have been indefeasibly paid in full in cash and discharged;
PROVIDED, HOWEVER, that:
(a) if a claim is made upon the Lenders at any time for repayment or
recovery of any amounts or any property received by the Lenders from any source
on account of any of the Obligations and the Lenders repay or return any amounts
or property so received (including interest thereon to the extent required to be
paid by the Lenders) or
(b) if the Lenders become liable for any part of such claim by reason of
(i) any judgment or order of any court or administrative authority having
competent jurisdiction, or (ii) any settlement or compromise of any such claim,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Lenders become
liable (such amounts being deemed part of the Obligations) to the same extent as
if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Obligations. Not later than five days after
receipt of notice from the Administrative Agent, the Guarantors shall jointly
and severally pay to the Administrative Agent an amount equal to the amount of
such repayment or return for which the Lenders have so become liable. Payments
hereunder by a Guarantor may be required by the Administrative Agent on any
number of occasions.
Section 5.3. WAIVERS WITH RESPECT TO OBLIGATIONS. Except to the extent
expressly required by this Agreement or any other Loan Document, each Guarantor
waives, to the fullest extent permitted by the provisions of applicable law, all
of the following (including all defenses, counterclaims and other rights of any
nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment of any of
the Obligations, and notice of protest, dishonor or nonperformance;
(b) notice of acceptance of this guarantee and notice that credit has
been extended in reliance on the Guarantor's guarantee of the Obligations;
(c) notice of any Default or Event of Default or of any inability to
enforce performance of the obligations of any Borrower or any other Person with
respect to any Loan
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Document, notice of any intention to accelerate the maturity of any Obligations
and notice of any acceleration of maturity of any Obligations;
(d) demand for performance or observance of, and any enforcement of any
provision of, the Obligations, this Agreement or any other Loan Document or any
pursuit or exhaustion of rights or remedies with respect thereto or against any
Borrower or any Person in respect of the Obligations or any requirement of
diligence or promptness on the part of the Administrative Agent or the Lenders
in connection with any of the foregoing;
(e) any act or omission on the part of the Administrative Agent or the
Lenders which may impair or prejudice the rights of the Guarantor, including
subrogation rights or rights to obtain exoneration, contribution,
indemnification or any other reimbursement from any Borrower or any other
Person, or otherwise operate as a deemed release or discharge;
(f) any action which ▇▇▇▇▇ or impairs the value of, or any failure to
preserve or protect the value of, any Borrowing Base Property;
(g) any statute of limitations or any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than the obligation of the principal;
(h) the provisions of any "single action" or "anti-deficiency" law which
would otherwise prevent the Lenders from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the Lenders'
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or any other law which would otherwise
require any election of remedies by the Lenders;
(i) all demands and notices of every kind with respect to the foregoing;
and
(j) to the extent not referred to above, (i) all defenses to the payment
of the Obligations of any kind which any Borrower shall have waived as to itself
under this Agreement or any other Loan Document and (ii) all suretyship defenses
which could otherwise be asserted by such Guarantor.
Each Guarantor represents that it is the intent of the Guarantor to waive all
suretyship and other defenses of whatever nature (other than payment) that would
otherwise be available to it.
No delay or omission on the part of the Administrative Agent or the Lenders
in exercising any right under this Agreement or any other Loan Document or under
any guarantee of the Obligations shall operate as a waiver or relinquishment of
such right. No action which the Administrative Agent or the Lenders or any
Borrower or any other Obligor may take or refrain from taking with respect to
the Obligations, including any amendments thereto or modifications thereof or
waivers with respect thereto, shall affect the provisions of this Agreement or
the obligations of the Guarantors hereunder. None of the rights of the
Administrative Agent or the Lenders shall at any time in any way be prejudiced
or impaired by any act or failure to act on the
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part of any Obligor, or by any noncompliance by any Obligor with the terms,
provisions and covenants of this Agreement, regardless of any knowledge thereof
which the Administrative Agent or the Lenders may have or otherwise be charged
with.
Section 5.4. LENDERS' POWER TO WAIVE, ETC. Each Guarantor grants to the
Administrative Agent and the Lenders full power in their discretion, without
notice to or consent of such Guarantor, such notice and consent being hereby
expressly waived to the fullest extent permitted by applicable law, and without
in any way affecting the liability of the Guarantor under its guarantee
hereunder:
(a) To waive compliance with, and any Default or Event of Default under,
and to consent to any amendment to or modification or termination of any terms
or provisions of, or to give any waiver in respect of, this Agreement, any other
Loan Document, the Obligations or any guarantee thereof (each as from time to
time in effect);
(b) To grant any extensions of the Obligations (for any duration), and
any other indulgence with respect thereto, and to effect any total or partial
release (by operation of law or otherwise), discharge, compromise or settlement
with respect to the obligations of the Obligors or any other Person in respect
of the Obligations, whether or not rights against the Guarantor under this
Agreement are reserved in connection therewith;
(c) To take security in any form for the Obligations, and to consent to
the addition to or the substitution, exchange, release or other disposition of,
or to deal in any other manner with, any part of any property contained in such
security whether or not the property, if any, received upon the exercise of such
power shall be of a character or value the same as or different from the
character or value of any property disposed of, and to obtain, modify or release
any present or future guarantees of the Obligations and to proceed against any
of such security or such guarantees in any order;
(d) To collect or liquidate or realize upon any of the Obligations in any
manner or to refrain from collecting or liquidating or realizing upon any of the
Obligations; and
(e) To extend credit under this Agreement, any other Loan Document or
otherwise in such amount as the Lenders may determine, even though the condition
of the Obligors (financial or otherwise on an individual or combined or
consolidated basis) may have deteriorated since the date hereof.
Section 5.5. INFORMATION REGARDING THE BORROWERS, ETC. Each Guarantor
acknowledges and agrees that it has made such investigation as it deems
desirable of the risks undertaken by it in entering into this Agreement and is
fully satisfied that it understands all such risks. Each Guarantor hereby waives
any obligation which may now or hereafter exist on the part of the Lenders to
inform it of the risks being undertaken by entering into this Agreement or of
any changes in such risks and, from and after the date hereof, each Guarantor
undertakes to keep itself informed of such risks and any changes therein. Each
Guarantor hereby expressly waives any duty which may now or hereafter exist on
the part of the Lenders to disclose to the Guarantor
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any matter related to the business, operations, character, COLLATERAL, credit,
condition (financial or otherwise), income or prospects of the REIT, any
Borrower or their Affiliates or their properties or management, whether now or
hereafter known by the Lenders. Each Guarantor represents, warrants and agrees
that it assumes sole responsibility for obtaining from the Borrowers all
information concerning this Agreement and all other Loan Documents and all other
information as to the Borrowers and their Affiliates or their properties or
management as such Guarantor deems necessary or desirable.
Section 5.6. CERTAIN GUARANTOR REPRESENTATIONS. Each Guarantor represents
that (a) it is in its best interest and in pursuit of the purposes for which it
was organized as an integral part of the business conducted and proposed to be
conducted by the Borrowers and their respective Subsidiaries, and reasonably
necessary and convenient in connection with the conduct of the business
conducted and proposed to be conducted by it, to induce the Lenders to enter
into this Agreement and to extend credit to the Borrowers by making the
guarantees contemplated by this Section 5, (b) the credit available hereunder
will directly or indirectly inure to its benefit, and (c) by virtue of the
foregoing it is receiving at least reasonably equivalent value from the Lenders
for its guarantee hereunder. Each Guarantor acknowledges that it has been
advised by the Administrative Agent that the Lenders are unwilling to enter into
this Agreement unless the guarantees contemplated by this Section 5 are given by
it. Each Guarantor represents that (i) it will not be rendered insolvent as a
result of entering into this Agreement, (ii) after giving effect to the
transactions contemplated by this Agreement, it will have assets having a fair
saleable value in excess of the amount required to pay its probable liability on
its existing debts as they become absolute and matured, (iii) it has, and will
have, access to adequate capital for the conduct of its business and (iv) it has
the ability to pay its debts from time to time incurred in connection therewith
as such debts mature.
Section 5.7. SUBROGATION. Each Guarantor agrees that, until the
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset and other claims against the Obligors arising
by contract or operation of law in connection with any payment made or required
to be made by such Guarantor under this Agreement. After the payment in full of
the Obligations, each Guarantor shall be entitled to exercise against the
Borrowers and the other Obligors all such rights of reimbursement, subrogation,
contribution and offset, and all such other claims, to the fullest extent
permitted by law.
Section 5.8. GENERAL SUBORDINATION. Each Guarantor covenants and agrees
that after the occurrence of an Event of Default all Indebtedness, claims and
liabilities then or thereafter owing by any Borrower or any other Obligor to
such Guarantor whether arising hereunder or otherwise shall be subordinated to
the prior payment in full of the Obligations and shall be so subordinated as a
claim against such Obligor or any of its assets, whether such claim be in the
ordinary course of business or in the event of voluntary or involuntary
liquidation, dissolution, insolvency or bankruptcy, so that no payment with
respect to any such Indebtedness, claim or liability will be made or received
while any such Event of Default exists.
Section 5.9. FURTHER ASSURANCES AND CERTAIN RELEASES OF GUARANTORS. Each
Guarantor will, promptly upon the request of the Administrative Agent from time
to time, execute, acknowledge
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and deliver, and file and record, all such instruments, and take all such
action, as the Administrative Agent deems reasonably necessary or advisable to
carry out the intent and purposes of this Section 5. In the event that any
Subsidiary of a Borrower which is a Guarantor shall be merged or consolidated in
a transaction permitted under Section 8.4 or all of the Real Estate owned by
such Subsidiary shall become subject to Non-recourse Indebtedness the terms of
which prohibit such Subsidiary from providing a guaranty of the Obligations,
then so long as no Default or Event of Default shall have occurred and be
continuing and the Borrowers have provided the Administrative Agent a PRO FORMA
Compliance Certificate after giving effect to such release, the Administrative
Agent is authorized to release such Subsidiary from the provisions of this
Section 5.
Section 5.10. ADDITIONAL GUARANTORS. The REIT and the Borrowers shall cause
each Wholly Owned Subsidiary acquired or established on or after the Initial
Closing Date to become a Guarantor hereunder by executing and delivering to the
Administrative Agent a joinder agreement in form and substance reasonably
satisfactory to the Administrative Agent; provided that no Wholly Owned
Subsidiary, all of the Real Estate of which is subject to Non-recourse
Indebtedness, shall be required to become a Guarantor so long as (i) such Wholly
Owned Subsidiary continues to own only Real Estate which is subject to
Non-recourse Indebtedness and no other Real Estate, and (ii) the terms of such
Non-recourse Indebtedness prohibit such Wholly Owned Subsidiary from providing a
guaranty of the Obligations.
Section 5.11. CONTRIBUTION AMONG GUARANTORS. The Guarantors agree that, as
among themselves in their capacity as guarantors of the Obligations, the
ultimate responsibility for repayment of the Obligations, in the event that the
Borrowers fail to pay when due the Obligations, shall be equitably apportioned,
to the extent consistent with the Loan Documents, among the respective
Guarantors (a) in the proportion that each, in its capacity as a guarantor, has
benefited from the extensions of credit to the Borrowers by the Lenders under
this Agreement, or (b) if such equitable apportionment cannot reasonably be
determined or agreed upon among the affected Guarantors, in proportion to their
respective net worths determined on or about the date hereof (or such later date
as such Guarantor becomes party hereto). In the event that any Guarantor, in its
capacity as a guarantor, pays an amount with respect to the Obligations in
excess of its proportionate share as set forth in this Section 5.11, each other
Guarantor shall, to the extent consistent with the Loan Documents, make a
contribution payment to such Guarantor in an amount such that the aggregate
amount paid by each Guarantor reflects its proportionate share of the
Obligations. In the event of any default by any Guarantor under this Section
5.11, each other Guarantor will bear, to the extent consistent with the Loan
Documents, its proportionate share of the defaulting Guarantor's obligation
under this Section 5.11. This Section 5.11 is intended to set forth only the
rights and obligations of the Guarantors among themselves and shall not in any
way affect the obligations of any Guarantor to the Lenders under the Loan
Documents (which obligations shall at all times constitute the joint and several
obligations of all the Guarantors).
Section 6. REPRESENTATIONS AND WARRANTIES.
The REIT, each Borrower and each other Obligor represents and warrants to
the Administrative Agent and the Lenders as follows.
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Section 6.1. AUTHORITY, ETC.
(a) GOOD STANDING AND AUTHORITY OF REIT. The REIT (i) is a Maryland
corporation duly organized pursuant to its Articles of Incorporation and
amendments thereto filed with the State Department of Assessments and Taxation
of Maryland and is validly existing and in good standing under the laws of
Maryland, (ii) has all requisite power to own its property and conduct its
business as now conducted and as presently contemplated, (iii) is in good
standing as a foreign entity and is duly authorized to do business in The
Commonwealth of Massachusetts and 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 the REIT and (iv) is a
real estate investment trust in full compliance with and entitled to the
benefits of section 856 of the Code.
(b) GOOD STANDING AND AUTHORITY OF HERITAGE OP. Heritage OP (i) is a
Delaware limited partnership duly organized pursuant to the OP Partnership
Agreement and amendments thereto and its Certificate of Limited Partnership and
amendments thereto filed with the Secretary of State of Delaware and is validly
existing and in good standing under the laws of Delaware, (ii) has all requisite
power to own its property and conduct its business as now conducted and as
presently contemplated, (iii) is in good standing as a foreign entity and is
duly authorized to do business in The Commonwealth of Massachusetts and 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 Heritage OP and (iv) is not required to pay any federal income
taxes under the Code on its net income. Heritage OP has provided each of the
Lenders with a true and complete copy of the Heritage OP Partnership Agreement
as in effect on the Initial Closing Date.
(c) GOOD STANDING AND AUTHORITY OF ▇▇▇▇▇▇▇ OP. ▇▇▇▇▇▇▇ OP (i) is a
Delaware limited partnership duly organized pursuant to the OP Partnership
Agreement and amendments thereto and its Certificate of Limited Partnership and
amendments thereto filed with the Secretary of State of Delaware and is validly
existing and in good standing under the laws of Delaware, (ii) has all requisite
power to own its property and conduct its business as now conducted and as
presently contemplated, (iii) is in good standing as a foreign entity and is
duly authorized to do business in The Commonwealth of Massachusetts and 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 ▇▇▇▇▇▇▇ OP and (iv) is not required to pay any federal income taxes
under the Code on its net income. ▇▇▇▇▇▇▇ OP has provided each of the Lenders
with a true and complete copy of the ▇▇▇▇▇▇▇ OP Partnership Agreement as in
effect on the Initial Closing Date.
(d) GUARANTORS. Each of the Guarantors other than the REIT (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
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jurisdiction where a failure to be so qualified could have a materially adverse
effect on the business, assets or financial condition of the REIT or any
Borrower or such Guarantor.
(e) AUTHORIZATION. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the REIT or any Borrower or any
Subsidiary is a party and the transactions contemplated hereby and thereby (i)
are within the authority of the REIT and the Borrowers and any party thereto,
(ii) have been duly authorized by all necessary proceedings on the part of the
REIT and the Borrowers and each such Subsidiary, (iii) do not conflict with or
result in any material breach or contravention of any provision of law, statute,
rule or regulation to which the REIT or any Borrower or any Subsidiary is
subject or any judgment, order, writ, injunction, license or permit applicable
to the REIT or any Borrower or any Subsidiary and (iv) do not conflict with any
provision of the charter documents, partnership agreement, declaration of trust
or other charter documents or bylaws of, or any material agreement or other
instrument binding upon, the REIT or any Borrower or any Subsidiary.
(f) ENFORCEABILITY. The execution and delivery of this Agreement and the
other Loan Documents to which the REIT or any Borrower or any Subsidiary thereto
is or is to become a party will result in valid and legally binding obligations
of the REIT and each such Borrower and each such Subsidiary enforceable against
each of them 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
equitable remedies 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 by the REIT and the Borrowers and each other Obligor of this
Agreement and the other Loan Documents to which the REIT or any Borrower or any
other Obligor party thereto is 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, except as may be required in connection with
environmental transfer statutes relating to Real Estate transactions.
Section 6.3. TITLE TO PROPERTIES. The Borrowers and the Wholly Owned
Subsidiaries own all of the Borrowing Base Properties, subject to no rights of
others, including any mortgages, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted Borrowing Property
Liens.
Section 6.4. FINANCIAL STATEMENTS. The following financial statements have
been furnished to each of the Lenders: the consolidated balance sheet of the
REIT and its Subsidiaries as of December 31, 2001, and the related consolidated
statements of income and cash flows for the fiscal year then ended, accompanied
by an auditor's report prepared without qualification by KPMG LLP. Such balance
sheet and statements of income and cash flows have been prepared in accordance
with generally accepted accounting principles and fairly present the financial
condition of the REIT and its Subsidiaries as at the close of business on the
date thereof and the results of operations for the fiscal period then ended.
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Section 6.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date, there
has occurred no materially adverse change in the financial condition,
operations, assets or business of the REIT and its Subsidiaries taken as a whole
as shown on or reflected in the consolidated balance sheet of the REIT and its
Subsidiaries as of the Balance Sheet Date. Between the Balance Sheet Date and
the Initial Closing Date, there has been no material adverse change in the
Borrowing Base Net Operating Income of the Borrowing Base Properties, taken as a
whole.
Section 6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The REIT and its
Subsidiaries possess all material franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of their business substantially as now conducted
without known material conflict with any rights of others.
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
knowledge of the REIT or any Borrower, threatened against the REIT or any
Borrower or any of their Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined, might in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of the REIT, and, the Borrowers taken as a whole or
materially impair the right of the REIT or any Borrower or any of their
Subsidiaries to carry on business substantially as now conducted by them, or
result in any substantial liability not adequately covered by insurance, or for
which adequate reserves are not maintained on the most recent balance sheet of
the REIT, or which question the validity of this Agreement or any of the other
Loan Documents, or any action taken or to be taken pursuant hereto or thereto.
Section 6.8. MATERIAL AGREEMENTS; SURVIVING DEBT; NO MATERIALLY ADVERSE
CONTRACTS, ETC. The Obligors have provided to the Administrative Agent true and
complete copies (including all schedules and exhibits) of each of the Material
Agreements and each of the Surviving Debt Agreements as in effect on the date
hereof. None of the REIT, Borrowers nor any of their 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 the
REIT and the Borrowers taken as a whole. Neither the REIT nor any Borrower nor
any of their Subsidiaries is a party to any contract or agreement that has or is
expected, in the judgment of the officers of the REIT or any Borrower, to have
any materially adverse effect on the business of any of them.
Section 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
REIT nor any Borrower nor any of their Subsidiaries is in violation of any
provision of its charter, partnership agreement or other organizational
documents, by-laws, or any Material Agreement or any Surviving Debt Agreement or
other 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
reasonably be expected to result in the imposition of substantial penalties or
materially and adversely affect the financial condition, properties or business
of the REIT or any Borrower, individually, or the REIT and its Subsidiaries
taken as a whole.
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Section 6.10. TAX STATUS. The REIT and the Borrowers and each of their
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, (b) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings 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.
Section 6.11. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
Section 6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the REIT
nor any Borrower nor any of their 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 "affiliated 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 Permitted Liens, 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 REIT or any Borrower or any of their
Subsidiaries or rights thereunder.
Section 6.14. SETOFF, ETC. The Obligations and the rights of the
Administrative Agent and the Lenders with respect to the Obligations are not
subject to any setoff, claims, withholdings or other defenses.
Section 6.15. SOLVENCY.
(a) Immediately after the Initial Closing Date and immediately following
the making of each Loan and after giving effect to the application of the
proceeds of such Loans, (i) the fair value of the assets of the Obligors on a
combined and consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Obligors on a
combined and consolidated basis; (ii) the present fair saleable value of the
assets of the Obligors on a combined and consolidated basis will be greater than
the amount that will be required to pay the probable liability of the Obligors
on a combined and consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) the Obligors on a combined and consolidated
basis will be able to pay their debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured; and
(iv) the Obligors on a combined and consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they
are engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.
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(b) The REIT does not intend to, or to permit any of its Subsidiaries (if
the same would have a material adverse effect) to, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing of and
amounts of cash to be received by it or any such Subsidiary and the timing of
the amounts of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
Section 6.16. PENSION PLANS. Each Plan (other than a Multiemployer Plan)
and, to the knowledge of the REIT and the Borrowers, each Multiemployer Plan is
in material compliance with the applicable provisions of ERISA and the Code.
Each Multiemployer Plan and each Plan that constitutes a "defined benefit plan"
(as defined in ERISA) are set forth in SCHEDULE 6.16. The REIT, each Borrower
and each ERISA Affiliate have met all of the funding standards applicable to all
Plans that are not Multiemployer Plans, and no condition exists which would
permit the institution of proceedings to terminate any Plan that is not a
Multiemployer Plan under section 4042 of ERISA. To the best knowledge of the
REIT and the Borrowers, no Plan that is a Multiemployer Plan is currently
insolvent or in reorganization or has been terminated within the meaning of
ERISA.
Section 6.17. REGULATIONS U AND X. No portion of any Loan is to be used 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 6.18. ENVIRONMENTAL COMPLIANCE. The REIT and the Borrowers have,
from time to time, caused environmental site assessments to be conducted on Real
Estate and, based upon such investigation, and except as set forth on SCHEDULE
6.18, make the following representations and warranties.
(a) With respect to each Borrowing Base Property, and to the best
knowledge of the REIT and the Borrowers with respect to all other Real Estate,
none of the REIT, the Borrowers, their Subsidiaries or any operator of the Real
Estate, or any operation 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 or alleged
violation (i) involves a Disqualifying Environmental Event with respect to any
Borrowing Base Property or which would have a material adverse effect on the
value of the Borrowing Base Properties, taken as a whole or, (ii) involves other
Real Estate and would have a material adverse effect on the business, assets or
financial condition of the REIT, the Borrowers and their Subsidiaries taken as a
whole.
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(b) Neither the REIT nor any Borrower nor any of their Subsidiaries has
received written 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 (including, without limitation, asbestos) 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 conducted or has ordered
that the REIT, any Borrower or any of their Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that it is or will be made 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; which notice in any case is of an event that
would evidence a Disqualifying Environmental Event with respect to any Borrowing
Base Property or that would have a material adverse effect on the value of
Borrowing Base Properties, taken as a whole or on the business, assets or
financial condition of the REIT, the Borrowers and their Subsidiaries taken as a
whole.
(c) With respect to each Borrowing Base Property, and to the best
knowledge of the REIT and the Borrowers with respect to all other Real Estate,
in the course of any activities conducted by the REIT, the Borrowers or their
Subsidiaries or, to the actual knowledge of the REIT or any Borrower without
investigation, the operators of their properties, no Hazardous Substances have
been generated or are being used on any Borrowing Base Property or other Real
Estate except in accordance with applicable Environmental Laws, which activity
would have a material adverse effect on the business, assets or financial
condition of the REIT, the Borrowers and their Subsidiaries taken as a whole.
(d) To the best knowledge of the REIT and the Borrowers, except as set
forth in the environmental site assessment reports or summaries of an
Environmental Engineer provided to the Administrative Agent prior to the Initial
Closing Date: (i) no portion of a Borrowing Base Property or other Real Estate
has been used for the handling, processing, storage (including without
limitation in any underground tank or other underground storage receptacle) or
disposal of Hazardous Substances except in accordance with applicable
Environmental Laws; (ii) 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 any Borrowing Base Property or any Release or threatened
Release of Hazardous Substances on, upon, into or from other Real Estate; (iii)
neither the REIT nor any Borrower or other Obligor has received written notice
that there have been any Releases on, upon, from or into any real property in
the vicinity of any of the Borrowing Base Property or other Real Estate which,
through soil or groundwater contamination, may have come to be located on, any
Borrowing Base Property or other Real Estate; and (iv) any Hazardous Substances
that have been generated on any Borrowing Base Property or other Real
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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, to the best knowledge of the REIT and the Borrowers without
independent investigation, 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 knowledge of the REIT or the Borrowers, operating in material compliance
with such permits and applicable Environmental Laws; but only to the extent and
such events described in clauses (i) - (iv) would constitute a Disqualifying
Environmental Event with respect to any Borrowing Base Property or would have a
material adverse effect on the value of the Borrowing Base Properties, taken as
a whole or on the business, assets or financial condition of the REIT, the
Borrowers and their Subsidiaries, taken as a whole.
(e) Neither the REIT nor any Borrower nor any of their Subsidiaries nor
any of the Borrowing Base Properties are, to the best knowledge of the REIT and
the Borrowers, subject to any applicable Environmental Law requiring the
performance of hazardous waste 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 as a condition to the recording of any mortgage, deed of
trust or deed in fee on or to such Borrowing Base Property or to the
effectiveness of any other transactions contemplated hereby, except as may be
required in connection with environmental transfer statutes relating to Real
Estate transactions.
Section 6.19. SUBSIDIARIES. SCHEDULE 6.19 sets forth all of the
Subsidiaries of the REIT and the Borrowers, as such SCHEDULE 6.19 shall be
updated from time to time by the Borrowers. The form and jurisdiction of
organization of each of the Subsidiaries, and the ownership interest therein of
the Borrowers are set forth in said SCHEDULE 6.19.
Section 6.20. REIT STATUS/INITIAL PUBLIC OFFERING. The REIT was organized
and has operated in conformity with the requirements for qualification and
taxation as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended (the "Code") for each of its taxable years beginning with the
year ended December 31, 1999, and its current organization and method of
operation will enable it to continue to meet the requirements for qualification
and taxation as a "real estate investment trust" under the Code. The REIT has
filed a registration statement, (the "Registration Statement") on Form S-11
(File No. 333-69118) with respect to the registration of up to 21,700,000 shares
of its common stock and in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act") and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange commission (the "SEC"). The
Registration Statement has become effective. The Registration Statement contains
all material statements and information required to be included therein by the
Act and the Rules and Regulations and in all material respects conform to the
requirements of the Act and the Rules and Regulations and do not include any
untrue statement of a material fact or omit to the state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
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Section 6.21. LOAN DOCUMENTS. All of the representations and warranties of
the REIT, the Borrowers and the other Obligors made in the other Loan Documents
or any document or instrument delivered to the Administrative Agent or the
Lenders pursuant to or in connection with any of such Loan Documents are true
and correct in all material respects and do not include any untrue statement of
a material fact or omit to state a material fact required to be stated or
necessary to make such representations and warranties not materially misleading.
Section 6.22. BORROWING BASE PROPERTY. The REIT and the Borrowers make the
following representations and warranties concerning each Borrowing Base
Property.
(a) OFF-SITE UTILITIES. All water, sewer, electric, gas, telephone and
other utilities are installed to the property lines of the Borrowing Base
Property and, except in the case of drainage facilities, are connected to the
Buildings located thereon with valid permits and are adequate to service the
Building in material compliance with applicable law.
(b) ACCESS, ETC. To the best knowledge of the Borrowers and the REIT, the
streets abutting the Borrowing Base Property are public roads, to which the
Borrowing Base Property has direct access by trucks and other motor vehicles and
by foot, or are private ways (with direct access by trucks and other motor
vehicles and by foot to public roads) to which the Borrowing Base Property has
direct access and easement rights.
(c) INDEPENDENT BUILDING. To the best knowledge of the Borrowers and the
REIT, the Building is fully independent in all respects including, without
limitation, in respect of structural integrity, heating, ventilating and air
conditioning, plumbing, mechanical and other operating and mechanical systems,
and electrical, sanitation and water systems, all of which are connected
directly to off-site utilities located in public streets or ways; provided, that
the Building may be supported by a party wall. The Building is located on a lot
or lots which is or are separately assessed for purposes of real estate tax
assessment and payment. The Building, all Building Service Equipment and all
paved or landscaped areas related to or used in connection with the Building are
located wholly within the perimeter lines of the lot or lots on which the
applicable Borrowing Base Property is located, except for de minimis
encroachments not having a material adverse effect.
(d) CONDITION OF BUILDING. To the best knowledge of the Borrowers and the
REIT, there are no material defects in the roof, foundation, structural elements
and masonry walls of the heating, ventilating and air conditioning, electrical,
sprinkler, plumbing or other mechanical systems or its Building or its Building
Service Equipment except those which are being remedied out of capital
replacement reserves or otherwise in the ordinary course of business.
(e) BUILDING COMPLIANCE WITH LAW. The Building as presently constructed
does not violate any applicable federal or state law or governmental regulation,
or any local ordinance, order or regulation, including but not limited to laws,
regulations, or ordinances relating to zoning, building use and occupancy,
subdivision control, fire protection, health and sanitation, the failure to
comply with which could have a material adverse effect on the Borrowing Base
Property. No Borrower has received written notice from applicable government
authority that the
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Building fails to comply with applicable zoning laws and regulations or that the
number of parking spaces on the lot or lots on which the Borrowing Base Property
is located is inadequate under the zoning laws and regulations to permit use of
the Building for its current use. To the extent required by law, the Borrowers
have complied in all material respects with the federal Americans with
Disabilities Act with respect to such Borrowing Base Property.
(f) NO REQUIRED REAL PROPERTY CONSENTS, PERMITS, ETC. Neither the REIT
nor any Borrower nor any Subsidiary has received any written notice of, or has
any knowledge of, any approvals, consents, licenses, permits, utility
installations and connections (including, without limitation, drainage
facilities), curb cuts and street openings, required for the maintenance,
operation, servicing and use of the Borrowing Base Property or the Building for
its current use which have not been granted, effected, or performed and
completed (as the case may be) or any fees or charges therefor which have not
been fully paid, except to the extent that the failure to obtain any such
approvals, consents, licenses, permits, utility installations and connections,
curb cuts and street openings could not in the aggregate have a material adverse
effect on the Borrowing Base Property. To the best knowledge of the REIT and the
Borrowers, there are no outstanding notices, suits, orders, decrees or judgments
relating to zoning, building use and occupancy, fire, health, sanitation or
other violations affecting, against, or with respect to, the Borrowing Base
Property or any part thereof which if not adequately addressed would have a
material adverse effect on the value of any Borrowing Base Property or on the
business, assets or financial condition of the REIT, the Borrowers and their
Subsidiaries, taken as a whole.
(g) INSURANCE. Neither the REIT nor any Borrower nor any Subsidiary has
received any written notice from or on behalf of any insurer requiring
performance of any material work with respect to the Borrowing Base Property or
canceling or threatening to cancel any policy of insurance, and the Borrowing
Base Property complies with the requirements of all insurance carriers.
(h) REAL PROPERTY TAXES; SPECIAL ASSESSMENTS. There are no unpaid or
outstanding real estate or other taxes or assessments on or against the
Borrowing Base Property or any part thereof which are payable by the REIT, any
Borrower or any Subsidiary (except only real estate taxes not yet required to be
paid under Section 7.8). There are no betterment assessments or other special
assessments presently pending with respect to any portion of the Borrowing Base
Property, and neither the REIT nor any Borrower nor any Subsidiary has received
any notice of any such special assessment being contemplated, except such
assessments as are included in the Borrowers' capital expenditures budget for
such Borrowing Base Property.
(i) EMINENT DOMAIN. There are no pending eminent domain proceedings
against the Borrowing Base Property or any part thereof, and, to the knowledge
of the REIT, the Borrowers and their Subsidiaries, no such proceedings are
presently threatened or contemplated by any taking authority.
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Section 7. AFFIRMATIVE COVENANTS.
Each of the REIT, the Borrowers and other Obligors jointly and severally
covenants and agrees that, so long as any Loan or Note is outstanding or Letter
of Credit Exposure exists or any Lender has any obligation to make any Loans or
to participate in or issue any Letter of Credit:
Section 7.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay
or cause to be paid the principal and interest on the Loans, Letter of Credit
reimbursement payments 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. Each of the REIT, the Borrowers and
other Obligors will maintain its chief executive office in Boston,
Massachusetts, or at such other place in the United States of America as the
REIT and the Borrowers shall designate upon written notice to the Administrative
Agent and the Lenders, where notices, presentations and demands to or upon the
REIT or the Borrowers in respect of the Loan Documents may be given or made.
Section 7.3. RECORDS AND ACCOUNTS. The REIT and the Borrowers will (a)
keep, and cause each of their 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
adequate accounts and reserves for all taxes (including income taxes),
depreciation and amortization of its properties and the properties of their
Subsidiaries, contingencies and other reserves.
Section 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The REIT
and Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than 90 days after
the end of each fiscal year of the REIT and the Borrowers, the audited
consolidated and consolidating balance sheets of the REIT, the Borrowers and
their Subsidiaries at the end of such year, and the related audited consolidated
and consolidating statements of income and cash flows for such year, each
setting forth in comparative form the figures for the previous fiscal year, 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 KPMG LLP or by another "Big Five" accounting
firm and any other reasonable information the Lenders may need to complete a
financial analysis of the Borrowers and the other Obligors, together with (i) a
written statement from such accountants that they have caused this Agreement to
be reviewed and that in the course of their audit no facts have come to their
attention that cause them to believe that any Default or Event of Default under
Section 9 exists or, if such is not the case, specifying such Default or Event
of Default and the nature thereof (such statement to be furnished by such
accountants with the understanding that the examination of such accountants
cannot be relied upon to give such accountants knowledge of any such Default or
Event of Default except as it relates to accounting or auditing matters within
the scope of their audit), and (ii) the unaudited consolidating balance sheets
of the REIT, Borrowers and their Subsidiaries at the end of such year and the
related unaudited consolidating statements of income for such year, each setting
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forth in comparative form the figures for the previous fiscal year, all such
statements to be in reasonable detail and accompanied by a certification by the
principal financial or accounting officer of the REIT that the information
contained in such consolidating financial statements fairly presents the
financial position of the REIT, the Borrowers and their Subsidiaries on the date
thereof,
(b) as soon as practicable, but in any event not later than 45 days after
the end of each of the first three fiscal quarters of the REIT, copies of the
unaudited consolidated and consolidating balance sheets of the REIT, the
Borrowers and their Subsidiaries as at the end of such quarter, and the related
unaudited consolidated and consolidating statements of income and the related
unaudited consolidated and consolidating cash flows for the portion of the
REIT's fiscal year then elapsed, all in reasonable detail and prepared in
accordance with generally accepted accounting principles (except for provisions
for footnotes), together with a certification by the principal financial or
accounting officer of the REIT that the information contained in such financial
statements fairly presents the financial position of the REIT, the Borrowers and
their Subsidiaries on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event not later than 45 days after
the end of each fiscal quarter of the REIT (including the fourth fiscal quarter
in each year), copies of a report, prepared on a basis consistent with the
statement furnished pursuant to Section 7.4(a) as to Funds From Operations, the
Adjusted Net Operating Income, the Borrowing Base Net Operating Income, capital
expenditures and occupancy status for each parcel of Real Estate owned by the
Borrowers and their respective Subsidiaries (excluding Development Assets and
Land Assets) together with a certification by each Borrower's treasurer,
assistant treasurer or other financial officer that the information contained in
such report fairly presents in all material respects the results of operations
of said parcels of Real Estate for such period (subject to year-end
adjustments);
(d) simultaneously with the delivery of the financial statements referred
to in subsections (a), (b) and (c) above, and at the other times specified
herein, a statement (a "Compliance Certificate") certified by the principal
financial or accounting officer of the REIT and the principal financial or
accounting officer of each Borrower in the form of Exhibit I hereto setting
forth in reasonable detail a computation of the Borrowing Base Availability as
of the date of such financial statements and computations evidencing compliance
with the covenants contained in Section 9 and (if applicable) reconciliations to
reflect changes in generally accepted accounting principles since the Balance
Sheet Date;
(e) contemporaneously with the filing or mailing thereof, copies of all
Reports on Form 8-K, 10-K or 10-Q, all registration statements and all other
material of a financial nature filed with the SEC by the REIT, the Borrowers or
any of their Subsidiaries;
(f) when requested by the Administrative Agent, copies of all annual
federal income tax returns and amendments thereto of the REIT, the Borrowers and
the other Obligors;
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(g) when requested by the Administrative Agent, copies of other periodic
income statements prepared by each Borrower for each Borrowing Base Property and
for each other parcel of Real Estate included in the determination of Combined
Total Asset Value;
(h) when requested by the Administrative Agent, a certificate of the REIT
evidencing that the REIT is a real estate investment trust within the meaning of
section 856 of the Code;
(i) not later than February 28 of each year, the Borrowers will provide
to the Administrative Agent and the Lenders an annual business plan, setting
forth their projected business prospects for the upcoming year and setting forth
the financial projections of the Borrowers, including projected income
statements and year-end balance sheet, for the upcoming year;
(j) not later than ten days following the occurrence thereof, written
notification of each event permitted under Section 8.4 which has a value equal
to or greater than $15,000,000 describing such event in reasonable detail;
(k) from time to time promptly following the request of the
Administrative Agent, such evidence as the Administrative Agent may request with
respect to the continued compliance of the Borrowing Base Properties with the
requirements of Eligible Real Estate (except that such evidence shall not be
requested more than once in any fiscal year of the Borrowers unless an Event of
Default shall have occurred and be continuing);
(l) from time to time promptly following the reasonable request of the
Administrative Agent, calculations of the Borrowing Base Availability at the
time in effect (in the form provided in the Compliance Certificate);
(m) contemporaneously with their delivery to the holders of the Surviving
Debt, copies of all financial information and reports provided under the
Surviving Debt Agreements; and
(n) from time to time such other financial data and information in the
possession of the REIT, any Borrower or other Obligor (including without
limitation auditors' management letters, property inspection and environmental
reports and information as to zoning and other legal and regulatory changes
affecting the REIT, any Borrower or any of their Subsidiaries) as the
Administrative Agent may reasonably request.
Section 7.5. NOTICES.
(a) DEFAULTS. The REIT and the Borrowers will promptly notify the
Administrative 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 a Default or Event of Default)
under this Agreement or under any note, evidence of indebtedness, indenture or
other obligation to which or with respect to which the REIT or any Borrower or
any of their Subsidiaries is a party or obligor, whether as principal or surety,
and such default would
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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 REIT, any Borrower or any other Obligor, the REIT and the
Borrowers shall forthwith give written notice thereof to the Administrative
Agent and each of the Lenders, describing the notice or action and the nature of
the claimed default.
(b) ENVIRONMENTAL EVENTS. The REIT and the Borrowers will promptly give
notice to the Administrative Agent (i) upon the REIT, any Borrower or any
Subsidiary obtaining knowledge of any known Release, or threat of Release, of
any Hazardous Substances at or from the Borrowing Base Property or other Real
Estate; (ii) of any violation of any Environmental Law that the REIT, any
Borrower or any of their 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,
or any federal, state or local environmental agency or board, that in either
case involves a Borrowing Base Property or other Real Estate or has the
potential to materially affect the assets, liabilities, financial conditions or
operations of the REIT, any Borrower or any Guarantor, taken as a whole. The
Borrower will also deliver to the Administrative Agent, at its reasonable
request from time to time, (i) hazardous waste site assessment reports running
in favor of the Administrative Agent and the Lenders concerning Hazardous
Substances (or the threat thereof) with respect to any Borrowing Base Property,
and (ii) engineering reports with respect to the physical condition of the
Buildings located on any Borrowing Base Property.
(c) NOTIFICATION OF CLAIMS AGAINST BORROWING BASE PROPERTY. The REIT and
the Borrowers will, immediately upon becoming aware thereof, notify the
Administrative Agent in writing of any setoff, claim (including, with respect to
the Borrowing Base Properties, any environmental claim), withholding or other
defense to which any of the Borrowing Base Properties, or the rights of the
Administrative Agent or the Lenders with respect to the Borrowing Base
Properties, are subject which, in any instance, exceeds $500,000 in the amount
asserted or in the expenditure reasonably anticipated to be required to defend
or resolve such matter or to correct the condition that is the subject of such
matter.
(d) NOTICE OF LITIGATION AND JUDGMENTS. The REIT and the Borrowers will
give notice to the Administrative 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 REIT, any Borrower or any of their
Subsidiaries or to which the REIT, any Borrower or any of their Subsidiaries is
a party involving an uninsured claim against the REIT, any Borrower or any of
its Subsidiaries that could reasonably be expected to have a materially adverse
effect on the REIT and the Borrowers, taken as a whole, and stating the nature
and status of such litigation or proceedings. The REIT and the Borrowers will
give notice to the Administrative Agent, in writing, in form and detail
satisfactory to the Administrative Agent, within ten days of any judgment not
covered by insurance, whether final or otherwise, against the REIT, any Borrower
or any of their Subsidiaries in an amount in excess of $2,000,000.
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(e) NOTICE OF PROPOSED SALES, ENCUMBRANCES OR TRANSFER OF BORROWING BASE
PROPERTIES. With respect to any proposed sale, encumbrance or transfer of any
parcel of Real Estate and of any interest held by the Borrowers or its
Subsidiaries in any such parcels (in one or a series of related transactions)
which has an aggregate purchase price in excess of $20,000,000, the REIT and the
Borrowers will promptly give notice to the Administrative Agent of any such
proposed sale, encumbrance or transfer, such notice to be accompanied by a
Compliance Certificate prepared on a PRO FORMA basis using the financial
statements of the REIT and its Subsidiaries most recently provided or required
to be provided to the Lenders under Section 6.4 or Section 7.4 adjusted in the
best good-faith estimate of the REIT and the Borrowers to give effect to such
sale, encumbrance or transfer and demonstrating that no Default or Event of
Default with respect to the covenants referred to herein shall exist after
giving effect to such sale, encumbrance or transfer, and a calculation of the
Borrowing Base Availability after giving effect to such sale, encumbrance or
transfer.
(f) NOTIFICATION OF LENDERS. Promptly after receiving any notice under
this Section 7.5, the Administrative Agent will forward a copy thereof to each
of the Lenders, together with copies of any certificates or other written
information that accompanied such notice.
Section 7.6. EXISTENCE; MAINTENANCE OF PROPERTIES.
(a) The REIT will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence as a Maryland corporation.
Heritage OP 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.
▇▇▇▇▇▇▇ OP 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
REIT and the Borrowers will cause each of their Subsidiaries to do or cause to
be done all things necessary to preserve and keep in full force and effect its
legal existence. The REIT and the Borrowers will do or cause to be done all
things necessary to preserve and keep in full force all of their material rights
and franchises and those of their Subsidiaries. The REIT and the Borrowers will,
and will cause each of their Subsidiaries to, continue to engage primarily in
the business of owning Real Estate consisting of Permitted Properties.
(b) The REIT and the Borrowers (i) will cause all of their properties and
those of their Subsidiaries used or useful in the conduct of their businesses or
the businesses of their Subsidiaries to be maintained in good condition, repair
and working order and supplied with all necessary equipment in all cases in
which the failure so to do would have a material adverse effect on the condition
of the Borrowing Base Properties taken as a whole or on the financial condition,
assets or operations of the REIT and its Subsidiaries taken as a whole, 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 the Borrowing Base Properties taken
as a whole or on the financial condition, assets or operations of the REIT and
its Subsidiaries, taken as a whole.
(c) Upon the reasonable request of the Administrative Agent, the REIT and
the Borrowers promptly shall provide to the Administrative Agent an accurate,
complete and current
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Rent Roll with respect to all leases of each parcel of Real Estate; PROVIDED,
HOWEVER, that the Administrative Agent shall not make a request for the Rent
Roll of any particular parcel of Real Estate more than once in any twelve month
period unless a Default or Event of Default shall have occurred and be
continuing.
Section 7.7. INSURANCE.
(a) The REIT and the Borrowers will, at their expense, procure and
maintain for the benefit of the REIT and the Borrowers and the Administrative
Agent, insurance policies issued by such insurance companies, in such amounts,
in such form and substance, and with such coverages, endorsements, deductibles
and expiration dates as are reasonably acceptable to the Administrative Agent,
providing the following types of insurance covering the Real Estate:
(i) "All Risks" property insurance (including broad form flood and
comprehensive boiler and machinery coverages and, if and to the extent available
at reasonable rates, broad form earthquake coverage) on each Building and the
contents therein of the REIT, the Borrowers and their Subsidiaries in an amount
not less than one hundred percent (100%) of the full replacement cost of each
Building and the contents therein of the REIT, the Borrowers and their
Subsidiaries, with deductibles not to exceed $100,000 for any one occurrence,
with a replacement cost coverage endorsement, an agreed amount endorsement, and,
if requested by the Administrative Agent, a contingent liability from operation
of building laws endorsement, a demolition cost endorsement and an increased
cost of construction endorsement in such amounts as the Administrative Agent may
reasonably require. Full replacement cost as used herein means the cost of
replacing the Building (exclusive of the cost of excavations, foundations and
footings below the lowest basement floor) and the contents therein of the REIT,
the Borrowers and their Subsidiaries without deduction for physical depreciation
thereof.
(ii) During the course of construction or repair of any Building, the
insurance required by clause (i) above shall be written on a builders risk,
completed value, non-reporting form, meeting all of the terms required by clause
(i) above, covering the total value of work performed, materials, equipment,
machinery and supplies furnished, existing structures, and temporary structures
being erected on or near the Real Estate, including coverage against collapse
and damage during transit or while being stored off-site, and containing a
permission to occupy endorsement; PROVIDED that the insurance required by this
clause (ii) may be provided by the construction contractor.
(iii) (1) Flood insurance if at any time any Building on Borrowing Base
Property is located in any federally designated "special hazard area" (including
any area having special flood, mudslide and/or flood-related erosion hazards,
and shown on a Flood Hazard Boundary Map or a Flood Insurance Rate Map published
by the Federal Emergency Management Agency as Zone A, A0, A 1-30, AE, A99, AH,
V0, V 1-30, VE, V, M or E) and the broad form flood coverage required by clause
(i) above is not available, in an amount equal to the greater of the full
replacement cost or the maximum amount then available under the National Flood
Insurance Program.
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(2) Flood insurance if at any time any Building on Real Estate
other than Borrowing Base Property is located in any federally designated
"special hazard area" (including any area having special flood, mudslide and/or
flood-related erosion hazards, and shown on a Flood Hazard Boundary Map or a
Flood Insurance Rate Map published by the Federal Emergency Management Agency as
▇▇▇▇ ▇, ▇▇, ▇▇-▇▇, ▇▇, A99, AH, V0, V1-30, VE, V, M or E) and the broad form
flood coverage required by clause (i) above is not available, in an amount equal
to the greater of the full replacement cost or the maximum amount then available
under the National Flood Insurance Program, if available at reasonable rates.
(iv) Rent loss insurance in an amount sufficient to recover at least (1)
the total estimated gross rent receipts for the Real Estate for a twelve month
period, plus (2) to the extent paid separately by tenants and not included in
clause (1), all taxes, charges, sewer use fees, water rates, assessments of
every name and nature, and any government charges for a twelve month period.
(v) Commercial general liability insurance against claims for personal
injury (to include, without limitation, bodily injury and personal and
advertising injury) and property damage liability, all on an occurrence basis,
if commercially available, with such coverages as the Administrative Agent may
reasonably request (including, without limitation, contractual liability
coverage), with a general aggregate limit of not less than $15,000,000, a
completed operations aggregate limit of not less than $1,000,000, and a combined
single "per occurrence" limit of not less than $1,000,000 for bodily injury,
property damage and medical payments.
(vi) During the course of construction or repair of any improvements on
the Real Estate, owner's contingent or protective liability insurance covering
claims not covered by or under the terms or provisions of the insurance required
by clause (v) above.
(vii) Employers liability insurance.
(viii) Umbrella liability insurance with limits of not less than
$50,000,000 to be in excess of the limits of the insurance required by clauses
(v), (vi) and (vii) above, with coverage at least as broad as the primary
coverages of the insurance required by clauses (v), (vi) and (vii) above, with
any excess liability insurance to be at least as broad as the coverages of the
lead umbrella policy. All such policies shall be endorsed to provide defense
coverage obligations.
(ix) Workers' compensation insurance for all employees of the REIT, the
Borrowers or their Subsidiaries engaged on or with respect to the Real Estate.
(x) Such other insurance in such form and in such amounts as may from
time to time be required by the Administrative Agent against other insurable
hazards and casualties which at the time are commonly insured against in the
case of properties of similar character and location to the Real Estate.
The REIT and the Borrowers shall pay all premiums on insurance policies.
The REIT and the Borrowers shall deliver binders or certificates demonstrating
such insurance to the
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Administrative Agent; and the REIT and the Borrowers shall promptly furnish to
the Administrative Agent all renewal notices and, if so requested by the
Administrative Agent, evidence that all premiums or portions thereof then due
and payable have been paid. At least one day prior to the expiration date of the
policies, the REIT and the Borrowers shall deliver to the Administrative Agent
evidence of continued coverage, including a certificate of insurance, as may be
satisfactory to the Administrative Agent.
(b) All policies of insurance required by this Agreement shall contain
clauses or endorsements to the effect that (i) the insurer waives any right of
setoff, counterclaim, subrogation, or any deduction in respect of any liability
of the REIT, any Borrower or any Subsidiary, (ii) such policies shall not be
modified, canceled or terminated prior to the scheduled expiration date thereof
without the insurer thereunder giving at least 30 days prior written notice to
the Administrative Agent by certified or registered mail, and (iii) the
Administrative Agent or the Lenders shall not be liable for any premiums thereon
or subject to any assessments thereunder, and shall in all events be in amounts
sufficient to avoid any coinsurance liability.
(c) The insurance required by this Agreement may be effected through a
blanket policy or policies covering additional locations and property of the
REIT, the Borrowers and other Persons not included in the Borrowing Base
Properties, PROVIDED that such blanket policy or policies comply with all of the
terms and provisions of this Section 7.7.
(d) All policies of insurance required by this Agreement shall be issued
by companies licensed to do business in the State where the policy is issued and
also in The Commonwealth of Massachusetts and having a rating in Best's Key
Rating Guide of at least "A-" and a financial size category of at least "XI";
PROVIDED, that such ratings and financial size categories as in effect on the
date hereof shall be acceptable for the duration of the periods of any
extensions or renewals of policies currently in effect, but the issuers of any
subsequent policies shall be required to meet the rating and category size
requirements set forth above.
(e) Neither the REIT nor any Borrower nor any Subsidiary shall carry
separate insurance, concurrent in kind or form or contributing in the event of
loss, with any insurance required under this Agreement unless such insurance
complies with the terms and provisions of this Section 7.7.
(f) In the event of any loss or damage to a Borrowing Base Property in
excess of the deductible, the REIT and the Borrowers shall give immediate
written notice to the insurance carrier and the Administrative Agent, and the
Administrative Agent shall furnish a copy of such notice promptly to each of the
Lenders.
Section 7.8. TAXES. The REIT, each Borrower and each of their respective
Subsidiaries will duly pay and discharge, or cause to be paid and discharged,
before the same shall become delinquent, all taxes, assessments and other
governmental charges imposed upon it and upon the Borrowing Base Properties and
the other 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
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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 REIT, such Borrower or such Subsidiary shall have set
aside on its books 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 REIT, each Borrower and
each such Subsidiary either (i) will provide a bond issued by a surety
reasonably acceptable to the Administrative 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 REIT and the
Borrowers shall upon three Business Days' notice permit the Administrative Agent
or any of the Administrative Agent's designated representatives, at the expense
of the REIT and the Borrowers to visit and inspect during normal business hours
any of the REIT, the Borrowers, the properties of the REIT or the Borrowers or
any of their respective Subsidiaries to examine the books of account of the
REIT, the Borrowers and their respective Subsidiaries (and to make copies
thereof and extracts therefrom) and to discuss the affairs, finances and
accounts of the REIT, the Borrowers and their respective Subsidiaries with, and
to be advised as to the same by, their officers, all at such reasonable times
during normal business hours and intervals as the Administrative Agent may
reasonably request; PROVIDED, HOWEVER, that (except as may otherwise be agreed
by the Borrowers) the Administrative Agent shall not inspect any property of the
REIT or any Borrower or any of their respective Subsidiaries at the expense of
the REIT or any Borrower after the Initial Closing Date more than twice in any
twelve-month period unless a Default or an Event of Default shall have occurred
and be continuing.
Section 7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
REIT and the Borrowers will comply with, and will cause each of their
Subsidiaries to comply in all material respects with (i) all applicable laws and
regulations now or hereafter in effect wherever their businesses are conducted,
including all Environmental Laws, (ii) the provisions of their respective
corporate charters, partnership agreements or declarations of trust, as the case
may be, and other charter documents and by-laws, (iii) all agreements and
instruments to which any of them is a party or by which they or any of their
properties may be bound and (iv) all applicable decrees, orders, and judgments,
if the failure to comply with any of the items referred to (i) through (iv)
above would have a material adverse effect on the value of any Borrowing Base
Property or on the business, assets or financial condition of the REIT, the
Borrowers and their Subsidiaries, taken as a whole. If at any time while any
Revolving Loan or Note is outstanding or the Lenders have any obligation to make
Revolving 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 REIT or any Borrower may fulfill
any of its obligations hereunder, the REIT and the Borrowers will immediately
take or cause to be taken all reasonable steps within their power to obtain such
authorization, consent, approval, permit or license and furnish the
Administrative Agent with evidence thereof.
Section 7.11. USE OF PROCEEDS. The Borrowers shall use the proceeds of the
Loans to finance working capital, real estate acquisitions, capital improvements
and general corporate and partnership purposes and for no other purposes.
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Section 7.12. FURTHER ASSURANCES. The REIT and the Borrowers will cooperate
with, and will cause each of their Subsidiaries to cooperate with, the
Administrative Agent and the Lenders and execute such further instruments and
documents as the Lenders or the Administrative Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Agreement
and the other Loan Documents. Without limitation of the foregoing, the Borrowers
will, within 30 days after the Initial Closing Date, cause Heritage Realty
Special LP Corporation to become a Guarantor hereunder.
Section 7.13. REIT STATUS; OPERATION OF BUSINESS. The REIT at all times
will comply with all requirements of applicable laws and regulations necessary
to maintain REIT Status and to continue to be listed in good standing on the New
York Stock Exchange.
Section 7.14. PARTNERSHIP STATUS; OPERATION OF BUSINESS. The Borrowers
shall at all times comply with all requirements of the Code necessary to not be
required to pay any federal income taxes under the Code, including when
profitable. The REIT shall be and remain the sole general partner of Heritage OP
and the Acquisition Subsidiary shall be and remain the sole general partner of
▇▇▇▇▇▇▇ OP, and the REIT and/or the Acquisition Subsidiary shall own not less
than (a) 51% of the outstanding Partnership Units (as defined in the Heritage OP
Partnership Agreement) of Heritage OP, (b) 51% of the outstanding Partnership
Interests (as defined in the ▇▇▇▇▇▇▇ OP Partnership Agreement) and (c) 100% of
the issue and outstanding capital stock of the Acquisition Subsidiary. The
Borrowers shall not issue limited partnership interests other than to the REIT
or the Acquisition Subsidiary except in exchange for transfers of Real Estate.
The REIT shall, and shall cause the Acquisition Subsidiary to, observe and
perform all covenants applicable to them as the respective sole general partners
of the Borrowers which are contained in the Heritage OP Partnership Agreement
and the ▇▇▇▇▇▇▇ OP Partnership Agreement.
Section 7.15. OPERATION AND CONTROL. Each Borrower and the REIT shall carry
on all existing business operations through themselves and their Wholly Owned
Subsidiaries except as otherwise permitted under Section 8.3(i). Until Heritage
Realty Special LP Corporation becomes a Guarantor, it shall own no material
asset other than a 1% limited partnership interest in Heritage OP.
Section 8. CERTAIN NEGATIVE COVENANTS.
The REIT and the Borrowers covenant and agree that, so long as any Loan or
Note is outstanding or any of the Lenders has any obligation to make any Loans:
Section 8.1. RESTRICTIONS ON INDEBTEDNESS. The REIT and the Borrowers will
not, and will not permit any of their respective Subsidiaries to, create, incur,
assume, guarantee or be or remain liable, contingently or otherwise, with
respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
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(b) current liabilities of the REIT, the Borrowers or their 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;
(c) Indebtedness (i) of the REIT, the Borrowers or their Subsidiaries in
respect of taxes, assessments and governmental charges or levies and (ii) of the
REIT, the Borrowers or their Subsidiaries in respect of claims for labor,
materials and supplies, in each case 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;
(d) Indebtedness of the REIT, the Borrowers or their Subsidiaries 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 REIT and the Borrowers 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;
(e) endorsements for collection, deposit or negotiation and warranties of
products or services, in each case incurred in the ordinary course of business
by the REIT, the Borrowers or their Subsidiaries;
(f) Non-recourse Indebtedness of the Borrowers or their Subsidiaries;
PROVIDED, that this Section 8.1(f) shall not be interpreted to permit any
Indebtedness that would cause the REIT and its Subsidiaries to exceed the limits
in Sections 9.4, 9.5 and 9.6;
(g) Indebtedness of the REIT, the Borrowers or their Subsidiaries 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);
(h) Capitalized Leases and Indebtedness of the REIT, the Borrowers and
their Subsidiaries secured by purchase money security interests on tangible
personal property of the REIT, the Borrowers and their Subsidiaries; PROVIDED,
that the amount of such Indebtedness shall not exceed the book value of such
tangible personal property and in any event shall not exceed $10,000,000 in
aggregate amount outstanding at any time; and PROVIDED, FURTHER, that this
Section 8.1(h) shall not be interpreted to permit any Indebtedness that would
cause the Borrowers and their Subsidiaries to exceed the limits in Sections 9.4,
9.5 and 9.6;
(i) Indebtedness of the REIT and the Borrowers in respect of Qualified
Hedge Agreements;
(j) The Surviving Debt;
(k) Indebtedness of each of Heritage OP and NHHLP to each other in
respect of a cross-indemnification agreement between Heritage OP and NHHLP
covering losses that either may incur as a result of the cross-collateralization
of Non-recourse Indebtedness issued by each
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to Metropolitan Life Insurance Company, and Indebtedness of the REIT to each of
Heritage OP and NHHLP pursuant to separate guarantees by the REIT of the amounts
owing under said cross-indemnification agreement; PROVIDED, that none of the
rights of Heritage OP or NHHLP under said cross-indemnification agreement or
either of said guarantees shall be pledged or assigned to, or made the subject
of a security interest for the benefit of, any third party, including without
limitation Metropolitan Life Insurance Company or its affiliates, successors or
assigns;
(l) Indebtedness (i) of any Wholly Owned Subsidiary to an Obligor other
than the REIT or Acquisition Subsidiary or (ii) of any other Subsidiary of a
Borrower to an Obligor other than the REIT or Acquisition Subsidiary, PROVIDED
that the Investment represented by such Indebtedness is permitted by Section
8.3(1);
(m) So long as there is more than one Investment Grade Debt Rating and
the REIT and Borrowers are and, after giving effect to such Indebtedness as
evidenced by a PRO FORMA Compliance Certificate, will remain in compliance with
all their covenants hereunder, Indebtedness which is unsecured and incurred
under a medium term bond program reasonably approved by Administrative Agent
and;
(n) additional Indebtedness which in the aggregate does not exceed at any
time $10,000,000 in principal amount outstanding.
Section 8.2. RESTRICTIONS ON LIENS, ETC. The REIT and the Borrowers will
not, and will not permit any of their Subsidiaries to, (a) create or incur or
suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind
(collectively, sometimes referred to as "Liens") 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
agreement, device or arrangement; (d) suffer to exist for a period of more than
30 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)
sell, assign, pledge or otherwise transfer any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse
other than in the ordinary course of business; or (f) incur or maintain any
obligation to any holder of Indebtedness of the REIT or any Borrower or any of
their respective Subsidiaries which prohibits the creation or maintenance of any
lien securing the Obligations (or requires in any circumstance or upon any
contingency that any lien securing the Obligations be shared with such holder,
on an "equal and ratable" basis or otherwise); PROVIDED that the REIT, any
Borrower and any Subsidiary may create or incur or suffer to be created or
incurred or to exist, with the consent of the Administrative Agent (it being
understood and agreed that nothing in this Section 8.2 is intended to modify the
definition of an Eligible Property for purposes of determining whether a
property is eligible to be considered as a Borrowing Base Property):
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(i) Liens in favor of any Borrower on all or part of the assets of its
Subsidiaries securing Indebtedness owing by such Subsidiaries to such Borrower;
(ii) Liens on properties to secure taxes, assessments and other
governmental charges or claims for labor, material or supplies in respect of
obligations which (A) are not yet due and payable or (B) are not yet required to
be paid under Section 7.8;
(iii) deposits or pledges made in connection with, or to secure payment of,
workers' compensation, unemployment insurance, old age pensions or other Social
Security obligations;
(iv) Liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by Section 8.1(d) PROVIDED that
the aggregate amount secured by such liens at no time shall exceed $10,000,000;
(v) encumbrances on Real Estate consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under leases
to which the REIT, any Borrower or any of their respective subsidiaries is a
party and other minor liens or encumbrances, none of which interferes materially
with the use of the property affected in the ordinary conduct of the business of
the REIT, the Borrowers and their respective Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse effect on the
business of the REIT, the Borrowers and their respective Subsidiaries on a
consolidated basis;
(vi) Liens on Real Estate (other than the Borrowing Base Properties) and
Short-term Investments securing Non-recourse Indebtedness permitted by Section
8.1(f) (including cross-collateralization permitted under Section 8.11) and
prohibitions imposed by the holders of Non-recourse Indebtedness permitted by
Section 8.1(f) on liens and encumbrances on Real Estate and Short-term
Investments subject to such Non-recourse Indebtedness;
(vii) Capitalized Leases and purchase money security interests permitted by
Section 8.1(h);
(viii) Liens in favor of the Administrative Agent and the Lenders under the
Loan Documents;
(ix) leases of Borrowing Base Properties and other Real Estate in the
ordinary course of business;
(x) with respect to any Borrowing Base Property on the date hereof,
options and rights of first refusal to the extent specifically described on
Schedule 8.2(x), and options and rights of first refusal on Real Estate other
than a Borrowing Base Property;
(xi) Liens on Real Estate other than Borrowing Base Properties related to
the Surviving Debt and in existence as of the Initial Closing Date and covenants
in Section 2.4 of each of the MTN Supplemental Indentures restricting the
incurrence of secured debt by ▇▇▇▇▇▇▇ OP and its Subsidiaries and covenants in
Article 8 of the PMCC Loan Agreement and other
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documents governing Indebtedness permitted by Section 8.1(f) restricting pledges
and other transfers of Equity Interests in the REIT and its Subsidiaries;
(xii) other Liens on properties other than Borrowing Base Properties that
are not otherwise permitted by this Section 8.2 and that secure Indebtedness
which in the aggregate does not exceed at any time $5,000,000 in principal
amount outstanding.
Section 8.3. RESTRICTIONS ON INVESTMENTS. The REIT and the Borrowers will
not, and will not permit any of their Subsidiaries to, make or permit to exist
or to remain outstanding any Investment except:
(a) marketable direct or guaranteed obligations of the United States of
America;
(b) marketable direct obligations of any of the following: Federal Home
Loan Mortgage Corporation, Student Loan Marketing Association, Federal Home Loan
Banks, FNMA, 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;
(c) 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 $5,000,000,000
will not exceed $500,000;
(d) 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 ▇▇▇▇▇'▇ or by
S&P at not less than "P 1" or "P 2" if then rated by ▇▇▇▇▇'▇, and not less than
"A 1" or "A 2" if then rated by S & P;
(e) mortgage-backed securities guaranteed by the Government National
Mortgage Association, FNMA or the Federal Home Loan Mortgage Corporation and
other mortgage-backed bonds which at the time of purchase are rated by ▇▇▇▇▇'▇
or by S&P at not less than "Aa" if then rated by ▇▇▇▇▇'▇ and not less than "AA"
if then rated by S & P; PROVIDED, that the aggregate value (based on current
market value) of such Investments held by the REIT and its Subsidiaries at any
time shall not exceed $10,000,000;
(f) 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;
(g) shares of so-called "money market funds" registered with the SEC
under the Investment Company Act of 1940 which attempt to 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;
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(h) Investments of the REIT, the Borrowers or their Subsidiaries in fee
interests in Real Estate utilized principally for commercial purposes, including
▇▇▇▇▇▇▇ money deposits relating thereto and transaction costs;
(i) Subject to the applicable limitations, if any, set forth in Section
9.8, Investments (A) in Wholly Owned Subsidiaries (other than the Acquisition
Subsidiary), (B) Investments in Subsidiaries which are not Wholly Owned
Subsidiaries or in Minority Interest Entities that are for the purpose of owning
commercial real estate; PROVIDED, that so long as any Default or Event of
Default shall have occurred and be continuing, no additional Investment shall be
made under clause (B) hereof, and (C) in notes receivable;
(j) Investments that are consistent with general business practices and
strategies of the REIT and the Borrowers as of the Initial Closing Date and that
do not exceed in the aggregate $1,000,000;
(k) Investments consisting of recourse to the general credit of the REIT,
any Borrower or any Subsidiary with respect to any Non-recourse Indebtedness, to
the extent that such recourse is permitted by the definition of Non-recourse
Indebtedness in Section 1.1 and Investments consisting of guarantees
constituting Non-recourse Indebtedness permitted by Section 8.11;
(l) Investments consisting of the cross-indemnifications and guarantees
permitted by Section 8.1(k);
(m) so long as payment therefor is permitted under Section 8.7,
repurchases of limited partnership units held by minority investors in Heritage
OP or ▇▇▇▇▇▇▇ OP; and
(o) so long as no Default or Event of Default shall have occurred and be
continuing, Investments consisting of purchases of MTN Notes.
Section 8.4. MERGER, CONSOLIDATION, SALE AND LEASEBACK. The REIT and the
Borrowers will not, and will not permit any of their Subsidiaries to:
(i) become a party to any merger or consolidation except for (a) the
merger or consolidation of one or more of the Subsidiaries of any Borrower with
and into such Borrower, (b) the merger or consolidation of two or more
Subsidiaries of any Borrower (provided, that if one of such Subsidiaries is a
Guarantor, then the surviving entity of such merger shall be a Guarantor), (c)
the merger or consolidation of two or more Borrowers and (d) the merger or
consolidation (1) of any Borrower with another Person in which such Borrower is
the surviving entity or (2) of any Subsidiary of a Borrower with another Person
(excluding the REIT, the Acquisition Subsidiary or a Borrower) in which such
Subsidiary is the surviving entity and, in either case, prior to which the REIT
and the Borrowers shall have provided to each of the Lenders a Compliance
Certificate prepared on a PRO FORMA basis using the financial statements of the
REIT and its Subsidiaries most recently provided or required to be provided to
the Lenders under Section 6.4 or Section 7.4 adjusted in the best good faith
estimate of the REIT and the Borrowers to give
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effect to such merger or consolidation and demonstrating that no Default or
Event of Default with respect to the covenants referred to therein shall exist
after giving effect to such merger or consolidation; and
(ii) enter into any arrangement, directly or indirectly, whereby the REIT,
any Borrower or any Subsidiary shall sell or transfer any Real Estate owned by
it in order that then or thereafter the REIT, such Borrower or such Subsidiary
shall lease back such Real Estate unless the REIT, such Borrower or such
Subsidiary shall physically occupy substantially all of such Real Estate as
lessee for its corporate offices.
Section 8.5. COMPLIANCE WITH ENVIRONMENTAL LAWS. The REIT and the
Borrowers will not, and will not permit any of their Subsidiaries 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 such 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 compliance with Environmental Laws, (c) generate any
Hazardous Substances on any of the Real Estate except in 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 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), any of which
activities described in clauses (a) through (e) above would have a material
adverse effect on the value of any Borrowing Base Property or on the business,
assets or financial condition of the REIT, the Borrowers and their Subsidiaries
taken as a whole.
The REIT and the Borrowers 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 reasonable action (including, without
limitation, the conducting of engineering tests at the sole expense of the REIT
and the Borrowers) to determine whether Hazardous Substances are or ever were
Released or disposed of on the Borrowing Base Property (other than in compliance
with Environmental Laws after giving effect to such change); and
(ii) if any Release or disposal of Hazardous Substances shall occur or
shall have occurred on the Borrowing Base Property (including without limitation
any such Release or disposal occurring prior to the acquisition of such
Borrowing Base Property by the REIT, any Borrower or any Subsidiary), cause the
prompt containment and removal of such Hazardous Substances and remediation of
the Borrowing Base Property in compliance with all applicable laws and
regulations; PROVIDED, that all such actions shall be required to be taken only
by or pursuant to the advice of an Environmental Engineer; and PROVIDED,
FURTHER, that the REIT, the Borrowers and their Subsidiaries shall be deemed to
be in compliance with Environmental Laws
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for the purpose of this clause (ii) so long as any of them or a responsible
third party with sufficient financial resources is taking reasonable action to
remediate or manage any event of noncompliance in accordance with the advice of
an Environmental Engineer and no action shall have been commenced by any
enforcement agency.
All material costs related to environmental compliance requirements shall
be included in the Borrowers ' capital expenditures budgets (unless a third
party as described above is responsible for such costs of compliance and is
taking reasonable action to remediate or manage any event of noncompliance as
described above).
The Administrative Agent may engage its own Environmental Engineer to
review the environmental assessments and the compliance of the REIT and the
Borrowers with the covenants contained herein and the recommendations of the
Borrowers' Environmental Engineer. The REIT and the Borrowers will take all
reasonable precautions to identify environmental liabilities and not to incur
environmental liabilities that would constitute a Disqualifying Environmental
Event with respect to any Borrowing Base Property or which would have a material
adverse effect on the Borrowing Base Properties taken as a whole.
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 after the
Administrative Agent or the Majority Lenders shall receive notice from the REIT
or any Borrower of a Release or threatened Release of Hazardous Substances, or
shall have received notice from any other source deemed reliable by the
Administrative Agent or the Majority Lenders that a Release of Hazardous
Substances may have occurred, relating to any Borrowing Base Property, the
Administrative Agent may at its election (and will at the request of the
Majority Lenders) after five days prior notice to the REIT and the Borrowers
cause to be performed such environmental assessments of such Borrowing Base
Property 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 Borrowing Base Property
and (ii) whether the use and operation of such Borrowing Base Property comply
with all Environmental Laws. Environmental assessments may include detailed
visual inspections of such Borrowing Base Property 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 Borrowing Base Property 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 REIT and the Borrowers.
As used in this Section 8.5, the term Real Estate shall mean Real Estate
owned or leased by the Borrowers, the REIT or any of their Subsidiaries at the
relevant time of reference.
Section 8.6. CROSS DEFAULT. The REIT, Borrowers and the other Obligors
covenant not to permit to occur any default (beyond applicable cure periods) in
any of the following Indebtedness: (a) the Indebtedness under the PMCC Loan
Agreement; (b) other Non-recourse Indebtedness to the extent the same exceeds
$30,000,000 in the aggregate; and (c) other
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Indebtedness to the extent the same exceeds $20,000,000 in the aggregate;
provided, however, that this Section 8.6 is not intended to apply to the
Indebtedness under this Agreement, defaults on account of which are separately
dealt with herein.
Section 8.7. DISTRIBUTIONS. The aggregate amount of Distributions by the
Combined Group, determined on a combined basis, shall not exceed 90% of the
combined and consolidated Funds From Operations of the Combined Group on an
annual budgeted or actual basis (and shall not exceed 100% for more than two
consecutive fiscal quarters) except to the extent (and only to the extent) that
for any such period the sum of (a) additional Distributions required under the
Code to be made by the REIT with respect to such period in order to maintain the
REIT Status of the REIT, (b) the amount required to be paid by ▇▇▇▇▇▇▇ OP during
such period in order to pay the current return on limited partnership units
outstanding as of the Initial Closing Date to which such unitholders are
entitled under Section 8.413 of the ▇▇▇▇▇▇▇ OP Partnership Agreement and in
order to repurchase limited partnership units of ▇▇▇▇▇▇▇ OP outstanding as of
the Initial Closing Date that are put to ▇▇▇▇▇▇▇ OP pursuant to Section 3.2 of
the ▇▇▇▇▇▇▇ OP Partnership Agreement and (c) the amount required to be paid by
Heritage OP and/or ▇▇▇▇▇▇▇ OP during such period in order to repurchase limited
partnership units in Heritage OP or ▇▇▇▇▇▇▇ OP that are not outstanding as of
the Initial Closing Date which are put to Heritage OP or ▇▇▇▇▇▇▇ OP pursuant to
agreements between such Borrower and such limited partners, in each case as
evidenced by a certificate of the principal financial or accounting officer of
the REIT containing calculations in reasonable detail satisfactory in form and
substance to the Administrative Agent shall exceed such percentage limits;
PROVIDED, HOWEVER, that in the event that any Event of Default shall have
occurred and be continuing, the REIT, Borrowers and the other members of the
Combined Group shall make no Distributions whatsoever except as are required in
order for the REIT to maintain its REIT status under the Code.
Section 8.8. ASSET SALES AND ENCUMBRANCES. Borrowers shall not permit to
occur any sale, encumbrance or transfer of any parcel of Real Estate or any
interest held by the REIT, Borrowers or their Subsidiaries in any such parcel
involving consideration of $50,000,000 or more without, in each instance, first
obtaining the consent of the Majority Lenders (provided that if the
consideration is $100,000,000 or more, the unanimous prior consent of the
Lenders shall be required). In addition, neither any Borrower nor any other
Obligor shall sell, transfer, encumber or otherwise dispose of any Borrowing
Base Property (except as the result of a condemnation or casualty and except for
the granting of Permitted Borrowing Property Liens) unless there shall have been
delivered to the Lenders (a) a statement that no Default or Event of Default
exists or will exist after giving effect to such sale, transfer, encumbrance or
other disposition, (b) except to the extent not required by Section 7.5(e)
hereof, a PRO FORMA Compliance Certificate demonstrating that the REIT and the
Borrowers will be in compliance with their covenants referred to therein after
giving effect to such sale, transfer, encumbrance or other disposition and the
application of the proceeds thereof and (c) the computation of the Borrowing
Base Availability after giving effect to such sale, transfer, encumbrance or
other disposition and the application of the proceeds thereof. In the event that
after giving effect to any sale, transfer, encumbrance or other disposition of
Real Estate by the Borrowers or any other Obligor the sum of the outstanding
principal amount of the Loans plus the Letter of Credit Exposure shall exceed
the Borrowing Base Availability, then the proceeds (net of customary broker fees
and other transaction costs
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and, in the case of assets other than Borrowing Base Properties, net of any debt
secured by a lien thereon) of such sale, transfer, encumbrance or disposition
shall be applied in the order prescribed in Section 3.2 before being applied to
any other purposes of the REIT or the Borrowers. In any period of four
consecutive fiscal quarters the Aggregate Borrowing Base Value of all Borrowing
Base Properties sold, transferred, encumbered or disposed of by the Borrowers
and the other Obligors during such period shall not exceed the sum of (i)
fifteen percent (15%) of the Aggregate Borrowing Base Value of the Borrowing
Base Properties as of the first day of such period plus (ii) the Aggregate
Borrowing Base Value attributable to Borrowing Base Properties acquired during
such period. The provisions of this Section 8.8 shall not apply to or restrict
the transfer of a Borrowing Base Property from a Borrower or from any other
Wholly Owned Subsidiary which is a Subsidiary of a Borrower to a Borrower or to
a Wholly Owned Subsidiary which is a Subsidiary of a Borrower and a Guarantor
hereunder.
Section 8.9. TRANSACTIONS WITH AFFILIATES. No Obligor shall effect any
transaction with any Affiliate of such Obligor (except with another Obligor)
which is on a basis less favorable to such Obligor than would be the case if
such transaction had been effected with a non-Affiliate on an arm's-length
basis.
Section 8.10. ERISA, ETC. Each of the Borrowers and the REIT shall comply,
and shall cause all ERISA Affiliates to comply, in all material respects, with
the provisions of ERISA and the Code applicable to each Plan. Each of the
Borrowers and the REIT shall meet, and shall cause all ERISA Affiliates to meet,
all minimum funding requirements applicable to them with respect to any Plan
pursuant to section 302 of ERISA or section 412 of the Code, without giving
effect to any waivers of such requirements or extensions of the related
amortization periods which may be granted. At no time shall the Accumulated
Benefit Obligations under any Plan that is not a Multiemployer Plan exceed the
fair market value of the assets of such Plan allocable to such benefits by more
than $500,000. The Borrowers and the REIT shall not withdraw, and shall cause
all other ERISA Affiliates not to withdraw, in whole or in part, from any
Multiemployer Plan so as to give rise to withdrawal liability exceeding $500,000
in the aggregate. At no time shall the actuarial present value of unfunded
liabilities for post-employment health care benefits, whether or not provided
under a Plan, calculated in a manner consistent with Statement No. 106 of the
Financial Accounting Standards Board, exceed $500,000.
Section 8.11. CERTAIN GUARANTEES. Notwithstanding Section 8.1(f), two or
more issues of Non-recourse Indebtedness of the Borrowers and/or one or more
Subsidiaries may not be cross-guaranteed or cross-collateralized unless (a) each
of such guarantees constitutes Non-recourse Indebtedness, (b) the loan-to-value
ratio of each item of Non-recourse Indebtedness shall not exceed 75% as of the
date of its incurrence and (c) the total value of all Real Estate subject to
such pooled Non-recourse Indebtedness shall not exceed 40% of the Combined Total
Asset Value of the Combined Group as of the date of the incurrence of such
Non-recourse Indebtedness. Nothing in this Section 8.11 shall be interpreted to
permit any Indebtedness that would cause a violation of Sections 9.4, 9.5 or 9.6
of this Agreement.
Section 8.12. MANAGEMENT FEES. For any fiscal quarter, the REIT, the
Borrowers and their Subsidiaries collectively shall not pay management fees to
non-Affiliates of the REIT and its
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Subsidiaries in excess of three percent (3%) of the gross revenues collectively
received by such entities from Real Estate properties for such fiscal quarter.
Section 8.13. COMPLIANCE WITH MATERIAL AGREEMENTS AND THE SURVIVING DEBT
AGREEMENTS, NO LIMITATION OF LOAN DOCUMENTS. Each of the REIT, the Borrowers and
their Subsidiaries shall comply in all material respects with the Material
Agreements and the Surviving Debt Agreements (to the extent not in violation of
the other provisions of this Agreement or any other Loan Document). Without the
prior written consent of the Administrative Agent and the Majority Lenders, (a)
no Material Agreement or Surviving Debt Agreement shall be amended, modified,
waived or terminated in any manner by the REIT, any Borrower or any Subsidiary
that would have in any material respect an adverse effect on the interests of
the Lenders and (b) none of the REIT and its Subsidiaries shall maintain or
enter into any agreement containing any provision which restricts the ability of
the Obligors to amend or modify this Agreement or any other Loan Document.
Section 9. FINANCIAL COVENANTS.
The REIT and the Borrowers covenant and agree that, so long as any Loan or
Note is outstanding or any Lender has any obligation to make any Loans each of
them will comply with the following:
Section 9.1. BORROWING BASE DEBT SERVICE COVERAGE. The Borrowers will not
permit the aggregate Borrowing Base Net Operating Income for the Borrowing Base
Properties for any fiscal quarter to be less than 175% of the sum of (a) amount
of regularly scheduled payments of principal of and interest on all unsecured
debt permitted by Sections 8.1(j) and 8.1(m) of the Combined Group during such
fiscal quarter plus (b) the imputed debt service payment for the highest
aggregate principal amount of the Loans and Letter of Credit Exposure and all
other funded, unsecured debt of the Combined Group outstanding on any day during
such fiscal quarter determined using a 25-year amortization schedule and an
annual rate of interest equal to the greater of (1) the actual average daily
interest rate on the Loans in effect during such fiscal quarter, (2) the sum of
the published rate of interest on generally available debt securities
customarily issued by the Treasury of the United States of America which have a
maturity date most closely approximately the tenth anniversary of the last day
of such fiscal quarter plus 200 basis points and (3) eight and one-quarter
percent (8.25%).
Section 9.2. FIXED CHARGE COVERAGE ON A COMBINED GROUP BASIS. The
Borrowers will not permit (a) the total of the combined and consolidated EBITDA
of the Combined Group for any fiscal quarter minus an annual allowance (prorated
for such quarter) for capital expenditures, replacements and leasing costs equal
to $0.20 per square foot for each retail and office facility owned by a Combined
Group member (other than properties for which the tenant bears full
responsibility for all capital maintenance pursuant to a triple net lease) to be
less than (b) 1.75 times the Fixed Charges for the Combined Group for such
quarter.
Section 9.3. MINIMUM COMBINED NET WORTH. The Borrowers will not permit the
Combined Net Worth of the Combined Group on the last day of any fiscal quarter
to be less than the sum of
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(a) $750,000,000 plus (b) 75% of the consolidated amount realized by the REIT
and the other members of the Combined Group (net of issuance costs) from the
issuance of equity securities plus (c) 75% of the aggregate value of operating
units issued by the Borrowers in connection with asset or stock acquisitions
(valued at the time of issuance by reference to the terms of the agreement
pursuant to which such units are issued), in each case of (b) and (c) after the
Initial Closing Date and on or prior to the date such determination of Combined
Net Worth is made.
Section 9.4. SECURED DEBT ON A COMBINED GROUP BASIS. At no time shall the
aggregate outstanding principal amount of Combined Total Indebtedness secured by
liens permitted by Sections 8.2(vi), 8.2(vii), 8.2(xi) and 8.2(xii) exceed forty
percent (40%) of the Combined Total Asset Value of the Combined Group in any
fiscal quarter.
Section 9.5. TOTAL DEBT ON A COMBINED GROUP BASIS. At no time shall
Combined Total Indebtedness exceed fifty-five percent (55%) of the Combined
Total Asset Value of the Combined Group in any fiscal quarter.
Section 9.6. LIMITATION ON FLOATING RATE DEBT. The Borrowers shall not
permit Combined Total Indebtedness with floating interest features calculated on
changes in an index or reference point to total more than the amount which is
twenty-five percent (25%) of Combined Total Asset Value.
Section 9.7. AGGREGATE BORROWING BASE VALUE TO COMBINED TOTAL
INDEBTEDNESS. The Borrowers shall not permit the Aggregate Borrowing Base Value
for any fiscal quarter to be less than 175% of unsecured Combined Total
Indebtedness.
Section 9.8. LIMITATIONS ON CERTAIN CATEGORIES OF INVESTMENTS AND ASSETS.
The Borrowers will not permit at any time (a) the aggregate value of the
Development Assets of the Combined Group to exceed fifteen percent (15%) of the
Combined Total Asset Value of the Combined Group, (b) the aggregate value of the
Land Assets of the Combined Group to exceed five percent (5%) of the Combined
Total Asset Value of the Combined Group, (c) the aggregate amount of Investments
of the REIT, the Borrowers and the Wholly Owned Subsidiaries in Subsidiaries
which are not Wholly Owned Subsidiaries or in Minority Interest Entities as
permitted by Section 8.3(i) to exceed fifteen percent (15%) of the Combined
Total Asset Value of the Combined Group, (d) the aggregate amount of Investments
of the Combined Group made as advances to their respective Affiliates to exceed
ten percent (10%) of the Combined Total Asset Value of the Combined Group, (e)
the aggregate amount of Investments of the Combined Group in notes receivable to
exceed ten percent (10%) of the Combined Total Asset Value of the Combined
Group, and (f) the aggregate value of Investments referred to in clauses
9.8(a)-(e) to exceed thirty percent (30%) of the Combined Total Asset Value of
the Combined Group. For purposes of this Section 9.8 (but not for any other
purpose of this Agreement) the Development Assets and Land Assets will be valued
as provided in the definition of Total Asset Value in Section 1.1 (except that
there shall be added to the value of each Development Asset an amount equal to
the aggregate amount committed and/or budgeted by the Borrowers and their
Subsidiaries for cost of developing, designing, constructing and equipping such
Development Asset but not yet expended) and other Investments shall be valued at
their cost.
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Section 9.9 MTN COVENANTS. ▇▇▇▇▇▇▇ OP and its Subsidiaries will comply at
all times with the requirements of Section 2.4 of the MTN Supplemental
Indentures.
Section 10. CLOSING CONDITIONS.
The obligations of the Administrative Agent and the Lenders to make the
Loans and issue Letters of Credit from and after the Initial Closing Date shall
be subject to the satisfaction of the following conditions precedent on or prior
to the Initial Closing Date:
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 satisfactory to each Lender.
Revolving Credit Notes and the Swingline Note satisfactory in form and substance
to the Lenders shall have been executed on behalf of the Borrowers and delivered
to the Lenders.
Section 10.2. CERTIFIED COPIES OF ORGANIZATIONAL DOCUMENTS. Each of the
Lenders shall have received from the REIT and the Borrowers copies, certified as
of a recent date by the appropriate officer of each State in which the REIT, the
Borrowers or any Guarantor is organized and a duly authorized officer of the
REIT to be true and complete, of the certificate of incorporation of the REIT,
the certificates of limited partnership of the Borrowers and each organizational
document of each Guarantor, in each case as amended through the Initial Closing
Date. Each of the Lenders shall have received from Heritage OP a copy, certified
as of the Initial Closing Date by a duly authorized officer of the REIT as
general partner of Heritage OP, of the Heritage OP Partnership Agreement as
amended through the Initial Closing Date. Each of the Lenders shall have
received from ▇▇▇▇▇▇▇ OP a copy, certified as of the Initial Closing Date by a
duly authorized officer of the Acquisition Subsidiary as general partner of
▇▇▇▇▇▇▇ OP, of the ▇▇▇▇▇▇▇ OP Partnership Agreement as amended through the
Initial Closing Date.
Section 10.3. BY-LAWS; RESOLUTIONS. All action on the part of the REIT, the
Borrowers and each Guarantor necessary for the valid execution, delivery and
performance by each of the REIT, the Borrowers and such Guarantor of this
Agreement and the other Loan Documents to which it is or is to become a party
shall have been duly and effectively taken, and evidence thereof satisfactory to
the Administrative Agent shall have been provided to each of the Lenders. Each
of the Lenders shall have received from each of the REIT, each Borrower and each
applicable Guarantor true copies of its by-laws and the resolutions adopted by
its shareholders and board of directors, partners, beneficiaries and trustees,
as the case may be, authorizing the transactions described herein, each
certified by its clerk, secretary, trustee or authorized partner (as the case
may be) as of a recent date to be true and complete.
Section 10.4. INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. Each of the
Lenders shall have received from the REIT, each Borrower and each Guarantor an
incumbency certificate, dated as of the Initial Closing Date, signed by a duly
authorized officer of the REIT or officer, trustee or partner (as the case may
be) of each Borrower and each Guarantor and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to sign, in
the name
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and on behalf of the REIT, each such Borrower and each such Guarantor, each of
the Loan Documents to which the REIT, such Borrower or such Guarantor is or is
to become a party; (b) to make Loan and Conversion Requests; and (c) to give
notices and to take other action on behalf of the REIT or the Borrowers under
the Loan Documents.
Section 10.5. OPINIONS OF COUNSEL. Each of the Lenders shall have received
the favorable opinions addressed to the Lenders and the Administrative Agent and
dated as of the Initial Closing Date, in form and substance satisfactory to the
Administrative Agent, from (i) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to the REIT,
the Borrowers and the Guarantors and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll LLP,
special Maryland counsel to the REIT, and Heritage Realty Special LP
Corporation. The REIT, the Borrowers and the Guarantors hereby authorize and
direct such counsel to deliver all such opinions.
Section 10.6. PERFORMANCE; NO DEFAULT. The REIT and the Borrowers 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 Initial Closing Date, and on
the Initial Closing Date there shall exist no Default or Event of Default.
Section 10.7. REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the REIT and the Borrowers and their respective Subsidiaries
in the Loan Documents or otherwise made by or on behalf of the REIT, any
Borrower or any such Subsidiary 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 Initial Closing
Date.
Section 10.8. COMPLIANCE CERTIFICATE. A Compliance Certificate dated as of
the date of the Initial Closing Date demonstrating compliance with each of the
covenants calculated therein as of the fiscal quarter ended March 31, 2002 or
the Initial Closing Date, as applicable, and calculations demonstrating that all
Indebtedness proposed to be incurred by ▇▇▇▇▇▇▇ OP and its Subsidiaries on the
Initial Closing Date is permitted under the MTN Supplemental Indentures and that
no default under the MTN Supplemental Indentures will exist as of such date.
Section 10.9. CLOSING FEE. The Borrowers shall have paid Fleet the upfront
and other fees provided in the Fee Letter.
Section 10.10. CERTIFICATES OF INSURANCE. The Administrative Agent shall
have received (a) current certificates of insurance as to all of the insurance
maintained by Borrower on the Borrowing Base Properties and other Real Estate
(including flood insurance if necessary) from the insurer or an independent
insurance broker, identifying insurers, types of insurance, insurance limits,
and policy terms; and (b) such further information and certificates from
Borrower, its insurers and insurance brokers as the Administrative Agent may
reasonably request.
Section 10.11. HAZARDOUS SUBSTANCE ASSESSMENTS. To the extent available
prior to the date hereof, the Administrative Agent shall have received hazardous
waste site assessment reports or
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summaries concerning Hazardous Substances (or the threat thereof) and asbestos
with respect to the Borrowing Base Properties.
Section 10.12. STRUCTURAL CONDITION ASSURANCES. At the request of the
Administrative Agent, to the extent available, the Administrative Agent shall
have received evidence as to the good physical condition of the Buildings and
that utilities and public water and sewer service is available at the lot lines
of the Borrowing Base Properties and connected directly to the Buildings on the
Borrowing Base Properties.
Section 10.13. COMPLETION OF IPO. The initial public offering ("IPO") of
common stock of the REIT shall have been completed pursuant to the Registration
Statement and in conformity with the Act and the Rules and Regulations of the
SEC and shall have yielded (a) to the REIT and the Borrowers not less than
$291,000,000 in gross proceeds (the "REIT Proceeds") from the initial public
sale of common stock in the REIT and (b) to the REIT's largest stockholder, Net
Realty Holding Trust ("NRHT"), not less than $100,000,000 in gross proceeds from
its sale of common stock held in the REIT prior to the IPO, resulting in NRHT
holding no more than 45.8% of the common stock of the REIT post-IPO. The REIT
Proceeds will be used to payoff and discharge the Prior Credit Agreements.
Section 10.14. CLOSING CERTIFICATE. Contemporaneously with the making by
the Lenders of the first extension of credit hereunder, the REIT and the
Borrowers shall have furnished to the Lenders a certificate, signed by the
treasurer, assistant treasurer or other financial officer of each of the REIT
and the Borrowers, requesting such advance and representing that each of the
conditions set forth in this Section 10 has been satisfied.
Section 10.15. TERMINATION OF PRIOR CREDIT AGREEMENTS. Contemporaneously
with the initial advances hereunder, the Borrowers shall have paid in full all
principal, interest and other accrued and outstanding amounts under the Prior
Credit Agreements, all commitments to extend further credit under the Prior
Credit Agreements shall have been terminated, all liens (if any) securing
amounts owing under the Prior Credit Agreements shall have been released and the
Prior Credit Agreements shall have become terminated and of no further force and
effect (except for indemnity provisions that by their terms survive the
termination of the Prior Credit Agreements).
Section 10.16. MATERIAL AGREEMENTS. Each of the Material Agreements shall
be in full force and effect in form and substance as contemplated by Section
6.8.
Section 10.17. SURVIVING DEBT. Each of the Surviving Debt Agreements shall
be in full force and effect with no defaults thereunder or any conditions in
existence which with the passage of time and/or giving of notice would be
defaults thereunder.
Section 10.18. 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 Administrative Agent and the
Administrative Agent's Special Counsel in form and substance. The Administrative
Agent shall have received all information and such counterpart originals or
certified copies of such documents, instruments, certificates, opinions,
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assurances, consents and approvals other than those specified above as the
Administrative Agent and the Administrative Agent's Special Counsel may
reasonably require.
Section 11. CONDITIONS TO ALL BORROWINGS.
Except as set forth in Section 4.2(c)(v) with respect to Swingline Loans,
the obligations of the Lenders to make any Loan or to issue any Letter of
Credit, whether on or after the Initial Closing Date, shall also be subject to
the satisfaction of the following conditions precedent:
Section 11.1. REPRESENTATIONS TRUE, NO DEFAULT. Each of the representations
and warranties of the REIT, the Borrowers and their 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 or the issuance of such Letter of Credit, 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 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 or will exist immediately after
giving effect to the making of such Loan or the issuance of such Letter of
Credit or, with respect to any Default or Event of Default under Section 9 which
could be caused by the incurrence of Indebtedness, as of the last day of the
current fiscal quarter of the Borrowers (including without limitation any breach
of the additional debt incurrence tests contained in the MTN Supplemental
Indentures, so long as any such instrument shall remain in effect). Each of the
Lenders shall have received a certificate of the REIT and the Borrowers signed
by an authorized officer of the REIT and the Borrowers to such effect.
Section 11.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law
or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Lender would make it illegal for such Lender to make such Loan or
to participate in the issuance, extension or renewal of any Letter of Credit.
Section 11.3. GOVERNMENTAL REGULATION. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender 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 11.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the Loan shall be satisfactory in substance and in form to the Administrative
Agent, and the Administrative Agent and the Lenders shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Administrative Agent or the Majority Lenders may reasonably
request.
Section 11.5. BORROWING DOCUMENTS. In the case of any request for a
Revolving Loan or a Letter of Credit, each of the Lenders shall have received
the request for a Revolving Loan and certification required by Section 2.6 or,
as the case may be, the request for a Letter of Credit and
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certification required by Section 2.9, in each case in the form of Exhibit E
hereto, fully completed. In the case of any request for or related to a
Swingline Loan or a Bid Rate Loan, the Borrowers shall have complied with the
applicable requirements in Sections 4.2 and 4.2A.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of the Loans, or
reimbursement of payments under Letters of Credit 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;
(b) any Borrower shall fail to pay any interest on the Loans, or any
other sums due hereunder or under any of the other Loan Documents, within three
days of 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;
(c) the REIT or any Borrower or other Obligor shall fail to comply with
any covenant contained in Section 7.5, Section 7.7, Section 7.9, Section 7.11,
Section 7.13, Section 8 (other than Section 8.6 which is addressed below) or
Section 9;
(d) any Obligor 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 12.1), and such failure shall continue for
30 days after an executive or financial officer of the REIT or any Borrower
shall have actual knowledge thereof or written notice thereof shall have been
given to the REIT and the Borrowers by the Administrative Agent (provided, so
long as the Obligor has commenced cure within such 30-day period and is
diligently prosecuting the same to completion, the aforesaid 30-day period shall
be extended for an additional 30 days);
(e) any representation or warranty of any Obligor in this Agreement or
any other Loan Document or in any other document or instrument delivered
pursuant to or in connection with this Agreement shall prove to have been false
in any material respect upon the date when made or deemed to have been made or
repeated; PROVIDED, that, if such false representation or warranty shall have
been made without any Obligor having actual knowledge of its falsehood, such
falsity shall continue for 15 days after an executive or financial officer of
the REIT or any Borrower shall have actual knowledge thereof or written notice
thereof shall have been given to the REIT and the Borrowers by the
Administrative Agent;
(f) a breach of the covenant in Section 8.6 which breach has continued
beyond applicable cure periods, if any;
(g) the REIT, any Borrower or any of their Subsidiaries (i) 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 REIT, any Borrower or any of their
Subsidiaries
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or of any substantial part of the assets of any thereof, (ii) shall commence any
case or other proceeding relating to the REIT, any Borrower or any of their
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 (iii) shall take any action to
authorize or in furtherance of any of the foregoing;
(h) a petition or application shall be filed for the appointment of a
trustee or other custodian, liquidator or receiver of the REIT, any Borrower or
any of their Subsidiaries or any substantial part of the assets of any thereof,
or a case or other proceeding shall be commenced against the REIT, any Borrower
or any of their 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 REIT, any Borrower or any
of their Subsidiaries shall indicate its approval thereof, consent thereto or
acquiescence therein or such petition, application, case or proceeding shall not
have been dismissed within 60 days following the filing or commencement thereof;
(i) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating the REIT, any Borrower or any of their
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
REIT, any Borrower or any of its Subsidiaries in an involuntary case under
federal bankruptcy laws as now or hereafter constituted;
(j) there shall remain in force, undischarged, unsatisfied and unstayed,
for more than 30 days, whether or not consecutive, any uninsured final judgment
against the REIT, any Borrower or any of their Subsidiaries that, with other
outstanding uninsured final judgments, undischarged, against the REIT, any
Borrower or any of their Subsidiaries exceeds in the aggregate $10,000,000;
(k) 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 Lenders, or any
action at law, suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of any
Obligor or any of their respective holders of Voting Interests, 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,
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Majority Lenders shall have determined in
their reasonable discretion that such event reasonably could be expected to
result in liability of the REIT, any Borrower or any of their Subsidiaries to
the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$5,000,000 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
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Court to administer such Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(m) the REIT, any Borrower or any of their Subsidiaries shall be indicted
for a federal crime, a punishment for which could include the forfeiture of any
assets of any Borrower or any Subsidiaries included in the Borrowing Base
Properties;
(n) the REIT shall cease to own directly or indirectly at least 51% of
the voting partnership interests and total equity interests of any Borrower or
there shall occur any Change of Control;
(o) at any time following a public offering of common stock of the REIT,
any Person, together with " affiliates" and "associates" of such Person within
the meaning of Rule 12b-2 of the Exchange Act, or any "group" including such
Person under sections 13(d) and 14(d) of the Exchange Act, other than New
England Teamsters and Trucking Industry Pension Fund (and other than an
underwriter or group of underwriters during the underwriting period for such a
public offering), shall acquire beneficial ownership within the meaning of Rule
13d-3 of the Exchange Act of 33% or more of the voting stock or total equity
capital of the REIT; or
(p) [Intentionally deleted];
(q) [intentionally deleted];
(r) there shall occur any "Event of Default" as defined in Section 501 of
the MTN Indenture, as amended by the MTN Supplemental Indentures.
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Majority Lenders shall, by
notice in writing to the REIT and the Borrowers 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 and require
the Borrowers immediately to deposit with the Administrative Agent in cash an
amount equal to the then Letter of Credit Exposure (which cash shall be held and
applied to reimbursement of Letter of Credit payments, in each case) without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; PROVIDED that in the event of any
Event of Default specified in Section 12.1(g), Section 12.1(h) or Section
12.1(i), all such amounts shall become immediately due and payable automatically
and without any requirement of notice from any of the Lenders or the
Administrative Agent.
Section 12.2. TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in Section 12.1(g), Section 12.1(h) or Section 12.1(i) or any
Default with respect thereto shall occur, then immediately and without any
action on the part of the Administrative Agent or any Lender the Revolving Loan
Commitments and Swingline Loan Commitment shall terminate and any outstanding
offer to make a Bid Rate Advance shall be deemed to be withdrawn and the Lenders
shall be relieved of all obligations to make Revolving Loans or issue or
participate in the issuance of Letters of Credit to the Borrowers and the
Swingline Lender shall be relieved of all obligations to make
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Swingline Loans and no Lender shall have any obligation to make any Bid Rate
Advance. If any other Event of Default shall have occurred and be continuing,
any Lender may by notice to the REIT and the Borrowers terminate its Revolving
Loan Commitment and be relieved of all obligations to make Revolving Loans or
issue or participate in the issuance of Letters of Credit and the Swingline
Lender may by notice to the REIT and the Borrowers terminate its Swingline Loan
Commitment and be relieved of all obligations to make Swingline Loans and each
Lender shall be deemed to have withdrawn any outstanding offers to make Bid Rate
Advances. No termination under this Section 12.2 shall relieve the REIT or any
Borrower of any of the Obligations or any of its existing obligations to such
Lender arising under other agreements or instruments.
Section 12.3. REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the maturity of the
Revolving Loans, the Swingline Loans or the Bid Rate Loans have been accelerated
pursuant to Section 12.1, the Majority Lenders may direct the Administrative
Agent to proceed to protect and enforce the rights and remedies of the
Administrative Agent and Lenders 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 of Administrative Agent and Lenders under the Loan Documents or
applicable law. No remedy herein conferred upon any Lender or the Administrative
Agent or the holder of any Note or portion of any Letter of Credit Exposure 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.
Section 12.4. DISTRIBUTION OF PROCEEDS. In the event that, following the
occurrence or during the continuance of any Event of Default, the Administrative
Agent or any Lender, as the case may be, collects or receives any monies for
application to any of the Obligations, such monies shall be applied (subject to
the provisions of Section 14.2(e), if applicable) as follows:
First: To the Administrative Agent, towards any fees and any expenses for
which the Administrative Agent is entitled to reimbursement under this Agreement
or the other Loan Documents not theretofore paid to the Administrative Agent.
Second: To all applicable Lenders in accordance with their proportional
shares based upon their respective Commitment Percentages until all Lenders have
been reimbursed for all expenses which such Lenders have previously paid to the
Administrative Agent and not theretofore paid to such Lenders.
Third: To the Swingline Lender to repay any Swingline Loans not yet
converted to Revolving Loans;
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Fourth: To all Lenders in accordance with their proportional shares based
upon their respective Commitment Percentages until all Lenders have been paid in
full all principal, interest and fees due to such Lenders under the Revolving
Loans, with each Lender applying such proceeds for purposes of this Agreement
first to accrued and unpaid interest due under the Revolving Loans, then to all
outstanding fees due to such Lender hereunder and then against the outstanding
principal balance due to such Lender under the Revolving Loans.
Fifth: To all applicable Lenders in accordance with their proportional
shares based upon their respective Commitment Percentages until all Lenders have
been paid in full all other amounts due to such Lenders under the Loan Documents
(other than on account of Bid Rate Loans), including, without limitation, any
costs and expenses incurred directly by such Lenders to the extent such costs
and expenses are reimbursable to such Lenders by the Borrowers under the Loan
Documents (other than on account of Bid Rate Loans).
Sixth: To cash collateralize the Letter of Credit Exposure as provided in
Section 12.1.
Seventh: To all applicable Lenders who have outstanding Bid Rate Loans in
accordance with their proportional shares of the aggregate of all outstanding
Bid Rate Loans until all such Bid Rate Loans have been fully repaid.
Eighth: To the Borrowers or such third parties as may be entitled thereto.
If, after Administrative Agent has paid each Lender's proportionate share of any
payment received or applied by Administrative Agent in respect of the Loans,
that payment is rescinded or must otherwise be returned or paid over by
Administrative Agent, whether pursuant to any bankruptcy or insolvency law,
sharing of payments clause of any loan agreement or otherwise, such Lender
shall, at Administrative Agent's request, promptly return its proportionate
share of such payment or application to Administrative Agent, together with the
Lender's proportionate share of any interest or other amount required to be paid
by Administrative Agent with respect to such payment or application.
Section 13. SETOFF; SHARING OF PAYMENTS.
Section 13.1. SETOFF. During the continuance of any Event of Default, any
deposits or other sums credited by or due from any of the Lenders to any Obligor
and any securities or other property of any Obligor in the possession of such
Lender may be applied or set off by such Lender against the payment of the
Obligations and any and all other liabilities, direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising of such
Obligor to such Lender.
13.2. SHARING OF PAYMENTS. Each Lender agrees that (a) if by exercising any
right of set-off or counterclaim or otherwise, it shall receive payment of (i) a
proportion of the aggregate amount due with respect to its Commitment Percentage
of the Revolving Loans and Letter of Credit Exposure which is greater than (ii)
the proportion received by any other Lender in respect of the aggregate amount
due with respect to such other Lender's Commitment Percentage of the
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Revolving Loans and Letter of Credit Exposure and (b) the Lender receiving such
proportionately greater payment shall promptly purchase participations in the
Revolving Loans and Letter of Credit Exposure held by the other Lenders, and
such other adjustments shall be made from time to time (including rescission of
such purchases of participations in the event the unequal payment originally
received is recovered from such Lender through bankruptcy proceedings or
otherwise), as may be required so that all such payments of principal and
interest with respect to the Revolving Loans and Letter of Credit Exposure held
by the Lenders shall be shared by the Lenders pro rata in accordance with their
respective Commitment Percentages; PROVIDED, HOWEVER, that this Section 13.2
shall not impair the right of any Lender to exercise any right of set-off or
counterclaim and to apply the amount subject to such exercise to the payment of
indebtedness of any Obligor other than such Obligor's indebtedness with respect
to the Obligations. Each Lender that grants a participation in the Obligations
under Section 18.5 shall require as a condition to the granting of such
participation that the participant agree to share payments received in respect
of the Obligations as provided in this Section 13.2. The provisions of this
Section 13.2 are for the sole and exclusive benefit of the Lenders and no
failure of any Lender to comply with the terms hereof shall be available to any
Obligor as a defense to the payment of the Obligations.
Section 14. THE AGENTS AND THE LENDERS.
Section 14.1. RIGHTS, DUTIES AND IMMUNITIES OF ADMINISTRATIVE AGENT.
(a) APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby irrevocably
designates and appoints Fleet as Administrative Agent of such Lender to act as
specified herein and in the other Loan Documents, and each such Lender hereby
irrevocably authorizes the Administrative Agent to take such actions, exercise
such powers and perform such duties as are expressly delegated to or conferred
upon the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this Section 14. The Administrative Agent shall not have any duties
or responsibilities except those expressly set forth herein or in the other Loan
Documents, nor shall it have any fiduciary relationship with any Lender, and no
implied covenants, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this Section 14 are solely for the benefit of the
Administrative Agent, the other Agents and the Lenders, and no Obligor shall
have any rights as a third party beneficiary of any of the provisions hereof.
(b) ADMINISTRATION OF LOANS BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be responsible for administering the Loans on a day-to-day basis. In
the exercise of such administrative duties, the Administrative Agent shall use
the same diligence and standard of care that is customarily used by the
Administrative Agent with respect to similar loans held by the Administrative
Agent solely for its own account. Each Lender delegates to the Administrative
Agent the full right and authority on its behalf to take the following specific
actions in connection with its administration of the Loans:
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(i) to fund Loans in accordance with the provisions of the Loan
Documents, but only to the extent of immediately available funds provided to the
Administrative Agent by the respective Lenders for such purpose (except, if the
Administrative Agent so elects at its discretion, as otherwise provided in
Section 14.2(f) below);
(ii) to receive all payments of principal, interest, fees and other
charges paid by, or on behalf of, the Borrowers and, except for fees to which
the Administrative Agent is entitled pursuant to the Loan Documents or
otherwise, to distribute all such funds to the respective Lenders as provided
for hereunder;
(iii) to keep and maintain complete and accurate files and records of all
material matters pertaining to the Loans, and make such files and records
available for inspection and copying by each Lender with an interest therein and
its respective employees and agents during normal business hours upon reasonable
prior notice to the Administrative Agent; and
(iv) to do or omit doing all such other actions as may be reasonably
necessary or incident to the implementation, administration and servicing of the
Loans and the rights and duties delegated hereinabove.
(c) DELEGATION OF DUTIES. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through its agents
or attorneys-in-fact, and shall be entitled to the advice of counsel concerning
all matters pertaining to its rights and duties hereunder or under the Loan
Documents. The Administrative Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
(d) EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be liable for any action lawfully taken or omitted to be taken by it or
them under or in connection with this Agreement or the other Loan Documents,
except for its or their gross negligence or willful misconduct. Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be responsible for or have any duty to
ascertain, inquire into, or verify (i) any recital, statement, representation or
warranty made by any Borrower or any Guarantor or any of their respective
officers or agents contained in this Agreement or the other Loan Documents or in
any certificate or other document delivered in connection therewith; (ii) the
performance or observance of any of the covenants or agreements contained in, or
the conditions of, this Agreement or the other Loan Documents; (iii) the state
or condition of any properties of any Obligor hereunder, if any, constituting
collateral (if any) for the Obligations of the Borrowers hereunder, or any
information contained in the books or records of any Obligor; (iv) the validity,
enforceability, collectibility, effectiveness or genuineness of this Agreement
or any other Loan Document or any other certificate, document or instrument
furnished in connection therewith; or (v) the validity, priority or perfection
of any lien securing or purporting to secure the Obligations.
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(e) RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any notice,
consent, certificate, affidavit, or other document or writing believed by it to
be genuine and correct and to have been signed, sent or made by the proper
person or persons, and upon the advice and statements of legal counsel
(including, without, limitation, counsel to the Borrowers), independent
accountants and other experts reasonably selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of the taking or failing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with any written
request of the Majority Lenders, and each such request of the Majority Lenders,
and any action taken or failure to act by the Administrative Agent pursuant
thereto, shall be binding upon all of the Lenders; PROVIDED, HOWEVER, that the
Administrative Agent shall not be required in any event to act, or to refrain
from acting, in any manner which is contrary to the Loan Documents or to
applicable law.
(f) NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
unless the Administrative Agent has actual knowledge of the same or has received
notice from a Lender or the REIT or any Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Administrative Agent obtains such
actual knowledge or receives such a notice, the Administrative Agent shall give
prompt notice thereof to each of the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders. Unless and until the Administrative
Agent shall have received such direction, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to any such Default or Event of Default as it shall deem advisable
in the best interest of the Lenders, PROVIDED, HOWEVER, that the Administrative
Agent shall not accelerate the indebtedness under this Agreement without the
prior written consent of the Majority Lenders.
(g) LENDERS' CREDIT DECISIONS. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on the financial statements prepared by the REIT and the
Borrowers and such other documents and information as it has deemed appropriate,
made its own credit analysis and investigation into the business, assets,
operations, property, and financial and other condition of the Obligors and has
made its own decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in determining whether or not conditions precedent to
closing any Loan hereunder have been satisfied and in taking or not taking any
action under this Agreement and the other Loan Documents.
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(h) ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders
agree to reimburse and indemnify the Administrative Agent, pro rata in
accordance with their respective Commitment Percentages, for (i) any amounts not
reimbursed by the Obligors for which the Administrative Agent, in its capacity
as Administrative Agent, is entitled to reimbursement by the Obligors under this
Agreement or the other Loan Documents, (ii) any other expenses incurred by the
Administrative Agent on behalf of the Lenders in connection with the
preparation, execution, delivery, administration, amendment, waiver and/or
enforcement of this Agreement and the other Loan Documents, and (iii) any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may
imposed on, incurred by or asserted against the Administrative Agent, in its
capacity as Administrative Agent, in any way relating to or arising out of this
Agreement or the other Loan Documents or any other document delivered in
connection therewith or any transaction contemplated thereby, or the enforcement
of any of the terms hereof or thereof, PROVIDED that no Lender shall be liable
for any of the foregoing to the extent that they arise from the gross negligence
or willful misconduct of the Administrative Agent. If any indemnity furnished to
the Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
action indemnified against until such additional indemnity is furnished.
(i) ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With respect to its
Commitments as a Lender, and the Loans made by it and the Notes issued to it,
the Administrative Agent shall have the same rights and powers hereunder and
under any other Loan Document as any Lender and may exercise the same as though
it were not the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and its subsidiaries and
affiliates may accept deposits from, lend money to, and generally engage in any
kind of commercial or investment banking, trust, advisory or other business with
any of the Obligors or any subsidiary or affiliate thereof as if it were not the
Administrative Agent hereunder.
(j) SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
at any time by giving thirty (30) days' prior written notice to the Lenders, the
REIT and the Borrowers. The Majority Lenders, for good cause, may remove the
Administrative Agent at any time by giving thirty (30) days' prior written
notice to the Administrative Agent, the REIT, the Borrowers and the other
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Administrative Agent, which appointment shall
be subject (so long as no Default or Event of Default shall have occurred and be
continuing, to the approval of the Borrowers, such approval not to be
unreasonably withheld or delayed). If no successor Administrative Agent shall
have been so appointed by the Majority Lenders and accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving notice
of resignation or the Majority Lenders' giving notice of removal, as the case
may be, then the retiring Administrative Agent may appoint, on behalf of the
REIT, the Borrowers and the Lenders, a successor Administrative Agent. Each such
successor Administrative Agent shall be a financial institution which meets the
requirements of an Eligible Assignee. Upon the
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acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent's resignation
hereunder, the provisions of this Section 14 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 the Administrative Agent hereunder.
(k) 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 Administrative Agent shall, at the
request, or may, upon the consent, of the Majority Lenders, and PROVIDED that
the Lenders have given to the Administrative Agent such additional indemnities
and assurances against expenses and liabilities as the Administrative Agent may
reasonably request, proceed to enforce the provisions of this Agreement and the
other Loan Documents respecting the exercise of any other legal or equitable
rights or remedies as it may have hereunder or under any other Loan Document or
otherwise by virtue of applicable law, or to refrain from so acting if similarly
requested by the Majority Lenders. The Administrative Agent shall be fully
protected in so acting or refraining from acting upon the instruction of the
Majority Lenders, and such instruction shall be binding upon all the Lenders.
The Majority Lenders may direct the Administrative Agent in writing as to the
method and the extent of any such foreclosure, sale or other disposition or the
exercise of any other right or remedy, the Lenders hereby agreeing to indemnify
and hold the Administrative Agent harmless from all costs and liabilities
incurred in respect of all actions taken or omitted in accordance with such
direction, PROVIDED that the Administrative Agent need not comply with any such
direction to the extent that the Administrative Agent reasonably believes the
Administrative Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction. The Administrative
Agent may, in its discretion but without obligation, in the absence of direction
from the Majority Lenders, take such interim actions as it believes necessary to
preserve the rights of the Lenders hereunder. Each of the Lenders acknowledges
and agrees that no individual Lender may separately enforce or exercise any of
the provisions of any of the Loan Documents, including without limitation the
Notes, other than through the Administrative Agent.
Section 14.2. RESPECTING LOANS and PAYMENTS.
(a) PROCEDURES FOR LOANS. Administrative Agent shall give written notice
to each Lender of each request for a Revolving Loan, or Conversion of an
existing Revolving Loan, by facsimile transmission, hand delivery or overnight
courier, not later than 1:00 p.m. (Boston time) (i) three (3) Business Days
prior to the making of a Revolving Loan which is a Libor Rate Loan or conversion
of a Base Rate Loan into a Libor Rate Loan, or (ii) one (1) Business Day prior
to the making of a Revolving Loan which is a Base Rate Loan or conversion of a
Libor Rate Loan into a Base Rate Loan. Each such notice shall be accompanied by
a written summary of the request for a Revolving Loan and shall specify (a) the
date of the requested Revolving Loan, (b) the aggregate amount of the requested
Revolving Loan, (c) each Lender's pro rata share of the requested Revolving
Loan, and (d) the applicable interest rate selected by Borrowers with respect to
such Revolving Loan, or any portion thereof, together with the applicable
Interest Period, if
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any, selected, or deemed selected, by such Borrowers. Each Lender shall, before
11:00 a.m. (Boston time) on the date set forth in any such request for a
Revolving Loan, make available to the Administrative Agent, at an account to be
designated by the Administrative Agent at Fleet in Boston, Massachusetts, in
same day funds, each Lender's ratable portion of the requested Revolving Loan.
After the Administrative Agent's receipt of such funds (or, if the
Administrative Agent so elects at its discretion, as otherwise provided in
Section 14.2(f) below) and upon the Administrative Agent's determination that
the applicable conditions to making the requested Revolving Loan have been
fulfilled, the Administrative Agent shall make such funds available to the
Borrowers as provided for in this Agreement. Within a reasonable period of time
following the making of each Revolving Loan, but in no event later than ten (10)
Business Days following such Revolving Loan, the Administrative Agent shall
deliver to each Lender a copy of the Borrowers' request for such Revolving Loan.
Promptly after receipt by the Administrative Agent of written request from any
Lender, the Administrative Agent shall deliver to the requesting Lender the
accompanying certifications and such other instruments, documents,
certifications and approvals delivered by or on behalf of Borrowers to the
Administrative Agent in support of the requested Revolving Loan.
The procedures for Swingloans and Bid Rate Loans are set forth in Sections
4.2 and 4.2A, respectively.
(b) NATURE OF OBLIGATIONS OF LENDERS. The obligations of the Lenders
hereunder are several and not joint. Failure of any Lender to fulfill its
obligations hereunder shall not result in any other Lender becoming obligated to
advance more than its Commitment Percentage of the Loans, nor shall such failure
release or diminish the obligations of any other Lender to fund its Commitment
Percentage of the Loans provided herein.
(c) PAYMENTS TO ADMINISTRATIVE AGENT. All payments of principal of and
interest on the Loans or the Notes shall be made to the Administrative Agent by
the Borrowers or any other obligor or guarantor for the account of the
applicable Lenders in immediately available funds as provided in such Notes and
this Agreement. Except as otherwise expressly provided in Section 12.4 or
Section 14.2(d) or any other provision of this Agreement, the Administrative
Agent agrees promptly to distribute to each Lender, on the same Business Day
upon which each such payment is made if such payment is received by 12:00 p.m.
and on the next Business Day if such payment is received after 12:00 p.m., such
Lender's proportionate share of each such payment in immediately available
funds. If any such payment is not made by the Administrative Agent on the same
Business Day as received, the funds shall be invested by the Administrative
Agent in overnight obligations, and interest thereon paid to the applicable
Lender(s). The Administrative Agent shall upon each distribution promptly notify
the Borrowers of such distribution and each Lender of the amounts distributed to
it applicable to principal of, and interest on, the proportionate share held by
the applicable Lender. Each payment to the Administrative Agent under the first
sentence of this Section 14.2(c) shall constitute a payment by the Borrowers to
each Lender in the amount of such Lender's proportionate share of such payment,
and any such payment to the Administrative Agent shall not be considered
outstanding for any purpose after the date of such payment by the Borrowers to
the Administrative Agent without regard to whether or when the Administrative
Agent makes distribution thereof as provided above. If any
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payment received by the Administrative Agent from the Borrowers is insufficient
to pay both all accrued interest and all principal then due and owing, the
Administrative Agent shall first apply such payment to all outstanding interest
until paid in full and shall then apply the remainder of such payment to all
principal then due and owing, and shall distribute the payment to each Lender
accordingly.
(d) DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the opinion of the
Administrative Agent distribution of any amount received by it in such capacity
hereunder or under the Notes or under any of the other Loan Documents might
involve any liability on the part of the Administrative Agent, it may refrain
from making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction or has been resolved by the
mutual consent of all Lenders. In addition, the Administrative Agent may request
full and complete indemnity, in form and substance satisfactory to it, prior to
making any such distribution. If a court of competent jurisdiction shall adjudge
that any amount received and distributed by the Administrative Agent is to be
repaid, each person to whom any such distribution shall have been made shall
either repay to the Administrative Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over to the same in such manner and to
such persons as shall be determined by such court.
(e) DELINQUENT LENDER. If for any reason any Lender shall fail or refuse
to abide by its obligations under this Agreement, including without limitation
its obligation to make available to Administrative Agent its pro rata share of
any Loans, expenses or setoff (a "Delinquent Lender") and such failure is not
cured within ten (10) days of receipt from the Administrative Agent of written
notice thereof, then, in addition to the rights and remedies that may be
available to Administrative Agent, other Lenders, the Borrowers or any other
party at law or in equity, and not at limitation thereof, (i) such Delinquent
Lender's right to participate in the administration of, or decision-making
rights related to, the Loans, this Agreement or the other Loan Documents or to
participate in proposing new Bid Rate Advances under Section 4.2A hereof shall
be suspended during the pendency of such failure or refusal, and (ii) a
Delinquent Lender shall be deemed to have assigned any and all payments due to
it from the Borrowers, whether on account of outstanding Loans, interest, fees
or otherwise, to the remaining non-delinquent Lenders for application to, and
reduction of, their proportionate shares of all outstanding Loans until, as a
result of application of such assigned payments the Lenders' respective pro rata
shares of all outstanding Loans shall have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency. The Delinquent Lender's decision-making and
participation rights and rights to payments as set forth in clauses (i) and (ii)
hereinabove shall be restored only upon the payment by the Delinquent Lender of
its pro rata share of any Loans or expenses as to which it is delinquent,
together with interest thereon at the Default Rate from the date when originally
due until the date upon which any such amounts are actually paid.
The non-delinquent Lenders shall also have the right, but not the
obligation, in their respective, sole and absolute discretion, to acquire for no
cash consideration, (pro rata, based on the respective Revolving Loan
Commitments of those Lenders electing to exercise such right) the Delinquent
Lender's Revolving Loan Commitment to fund future Loans (the "Future
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Commitment"). Upon any such purchase of the pro rata share of any Delinquent
Lender's Future Commitment, the Delinquent Lender's share in future Revolving
Loans and its rights under the Loan Documents with respect thereto shall
terminate on the date of purchase, and the Delinquent Lender shall promptly
execute all documents reasonably requested to surrender and transfer such
interest, including, if so requested, an Assignment and Acceptance. Each
Delinquent Lender shall indemnify the Administrative Agent and each
non-delinquent Lender from and against any and all loss, damage or expenses,
including but not limited to reasonable attorneys' fees and funds advanced by
Administrative Agent or by any non-delinquent Lender, on account of a Delinquent
Lender's failure to timely fund its pro rata share of a Loan or to otherwise
perform its obligations under the Loan Documents.
(f) ADVANCES FOR LENDERS. In the event that any Lender shall fail to
provide immediately available funds for its Commitment Percentage of the
Revolving Loans to be advanced on any Drawdown Date by 11:00 a.m. (Boston time)
on such Drawdown Date, as required by Section 2.7, then each such Lender
authorizes and requests the Administrative Agent to advance for such Lender's
account such Lender's Commitment Percentage of the Revolving Loans to be
advanced on such Drawdown Date and agrees to reimburse the Administrative Agent
in immediately available funds for the amount thereof prior to 2:00 p.m. (Boston
time) on such Drawdown Date; PROVIDED, HOWEVER, that the Administrative Agent
shall not be authorized to make any such advance for the account of any holder
which previously shall have notified the Administrative Agent in writing that
such Lender will not be performing its obligation to make further advances under
Section 2; and, PROVIDED, FURTHER, that the Administrative Agent shall be under
no obligation to make any such advance. In the event that a Lender shall fail to
reimburse the Administrative Agent for an advance under this Section 14.2(f) by
the time provided herein, such amount shall be due and payable on demand with
interest at the Federal Funds Rate calculated on a daily basis and the
Administrative Agent may, but shall be under no obligation to, demand repayment
from the Borrowers as provided in Section 3.2.
(g) HOLDERS. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or endorsee, as the case may
be, of such Note or of any Note or Notes issued in exchange therefor.
Section 14.3. OTHER AGENTS. The Syndication Agent, the Documentation Agent,
the Managing Agent and the Co-Agent shall have no responsibilities or
liabilities or rights or powers under the Loan Documents by virtue of their
holding such titles.
Section 15. EXPENSES.
The REIT and the Borrowers agree 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) any taxes (including any
interest and penalties in respect
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thereto) payable by the Administrative Agent, the Arranger or any of the Lenders
(other than taxes based upon the Administrative Agent's, the Arranger's or any
Lender's net income) on or with respect to the transactions contemplated by this
Agreement, including any taxes payable by the Administrative Agent, the Arranger
or any of the Lenders after the Initial Closing Date (the REIT and the Borrowers
hereby agreeing to indemnify the Administrative Agent, the Arranger and each
Lender with respect thereto), (c) all title insurance premiums, if any,
appraisal fees to the extent provided for in Section 5, reasonable engineer's
fees, reasonable internal charges of the Administrative Agent (determined in
good faith and in accordance with the Administrative Agent's internal policies
applicable generally to its customers) for commercial finance exams and
engineering and environmental reviews and the reasonable fees, expenses and
disbursements of the Administrative Agent's Special Counsel and any local
counsel to the Administrative 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 18.5), each closing hereunder, and
amendments, modifications, approvals, consents or waivers hereto or hereunder,
(d) the reasonable fees, expenses and disbursements of the Administrative Agent
incurred by the Administrative Agent in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, (e) all reasonable out-of-pocket expenses (including travel,
reasonable attorneys' fees and costs, which attorneys may be employees of any
Lender or the Administrative Agent and the fees and costs of appraisers,
engineers, investment bankers or other experts retained by any Lender or the
Administrative Agent) incurred by any Lender or the Administrative Agent in
connection with the enforcement of or preservation of rights under any of the
Loan Documents against any Obligor or the administration thereof after the
occurrence and during the continuance of a Default or Event of Default and (f)
all reasonable fees, expenses and disbursements of any Lender or the
Administrative Agent incurred in connection with any UCC searches, UCC filings
or mortgage recordings. All invoices for expenses payable under this Section 15
shall be reviewed by the Borrowers prior to payment. The covenants of this
Section 15 shall survive payment or satisfaction of payment of amounts owing
with respect to the Notes.
Section 16. INDEMNIFICATION.
Section 16.1. GENERAL INDEMNITY. Each of the REIT, the Borrowers and the
other Obligors agree to indemnify and hold harmless the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Arranger and the Lenders and
each director, officer, employee and administrative agent of, and each Person
who controls, the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Arranger or any Lender 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 actual or proposed use by the REIT, any Borrower or any of their
Subsidiaries of the proceeds of any of the Loans, (b) any actual or alleged
infringement of any patent, copyright, trademark, service ▇▇▇▇ or similar right
of the REIT, any Borrower or any of their Subsidiaries, (c) the REIT, any
Borrower or any of their Subsidiaries entering into or performing this Agreement
or any of the other Loan Documents or
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(d) with respect to the REIT, the Borrowers and their 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), in each case including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any investigation, litigation or other proceeding; PROVIDED,
HOWEVER, that the Borrowers shall not be obligated under this Section 16 to
indemnify the Administrative Agent, the Syndication Agent, the Documentation
Agent, the Arranger, any Lender or any other Person for liabilities arising from
such Person's own gross negligence or willful misconduct. Without limiting the
provisions of Section 15 hereof, in litigation, or the preparation therefor, the
Lenders, the Arranger, the Syndication Agent, the Documentation Agent, and the
Administrative Agent shall be entitled to select a single law firm as their own
counsel and, in addition to the foregoing indemnity, the REIT, the Borrowers and
the other Obligors agree to pay promptly the reasonable fees and expenses of
such counsel. If, and to the extent that the obligations of the REIT, the
Borrowers and the other Obligors under this Section 16 are unenforceable for any
reason, the REIT, the Borrowers and the other Obligors hereby agree to make the
maximum contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
Section 16.2. INDEMNITY WITH RESPECT TO LETTERS OF CREDIT. The Borrowers
shall indemnify each Letter of Credit Issuer and its correspondents and hold
each of them harmless from and against any and all claims, losses, liabilities,
damages and reasonable expenses (including reasonable attorneys' fees) arising
from or in connection with any Letter of Credit, including any such claim, loss,
liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, ▇▇▇▇ of lading, warehouse receipt or
other document at any time held by the Administrative Agent or such Letter of
Credit Issuer or held for their respective accounts by any of their
correspondents, in connection with any Letter of Credit, except to the extent
such claims, losses, liabilities, damages and expenses result from gross
negligence or willful misconduct on the part of the Administrative Agent or such
Letter of Credit Issuer.
Section 16.3 The provisions of this Section 16 shall survive the repayment
of the Loans and other Obligations and the termination of the commitments of the
Lenders hereunder and the termination of this Agreement and the other Loan
Documents.
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 REIT, any Borrower or any of their
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Lenders and the Agents, notwithstanding any investigation heretofore or
hereafter made by any of them, and shall survive the making by the Lenders 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 Lender has any obligation to
make any Loans. The indemnification obligations of the REIT, the Borrowers and
the other Obligors provided herein and the other Loan Documents shall
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survive the full repayment of amounts due and the termination of the obligations
of the Lenders hereunder and thereunder to the extent provided herein and
therein and the termination of this Agreement and the other Loan Documents. All
statements contained in any certificate or other paper delivered to any Lender
or any Agent at any time by or on behalf of the REIT, any Borrower or any of
their Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the REIT,
such Borrower or such Subsidiary hereunder.
Section 18. ASSIGNMENT AND PARTICIPATION.
Section 18.1. CONDITIONS TO ASSIGNMENT BY LENDERS. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage of the Revolving Loan Commitments
and the same portion of the Revolving Loans and Letter Credit Exposure at the
time owing to it, and the applicable Notes held by it); PROVIDED that (a) the
Administrative Agent shall have given its prior written consent to such
assignment, which shall not unreasonably be withheld or delayed, and (but only
so long as no Default or Event of Default shall have occurred and be continuing)
the Borrowers also shall have given their prior written consent to such
assignment, which shall not unreasonably be withheld or delayed, (b) each
assignment shall be in a minimum amount of $5,000,000, and, in the case of an
assignment in part, shall leave the assigning Lender an interest of not less
than $5,000,000 (PROVIDED, that subject to the consent of the Administrative
Agent, the requirements of this clause (b) may apply to a group of affiliated
Lenders taken as a whole rather than on an individual basis to each Lender
within an affiliated group), and (e) the parties to such assignment shall
execute and deliver to the Administrative Agent, for recording in the Register
(as hereinafter defined), an Assignment and Acceptance, substantially in the
form of Exhibit J hereto (an "Assignment and Acceptance"), together with any
Notes subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (i) the assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder, and (ii) the assigning Lender shall, to the
extent provided in such assignment and upon payment to the Administrative Agent
of the registration fee referred to in Section 18.3, be released from its
obligations under this Agreement. Any assigning Lender shall retain its rights
to be indemnified pursuant to Section 16 with respect to any claims or actions
arising prior to the date of such assignment.
Section 18.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS;
COVENANTS. By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or the attachment, perfection or
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priority of any security interest or mortgage; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Obligor or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance by
any Obligor or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 6.4 and Section 7.4 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d) such assignee will,
independently and without reliance upon the assigning Lender, any Agent,
Arranger or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (e) such assignee represents
and warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Administrative Agent to take such action as Administrative Agent
on its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto; (g)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender; and (h) such assignee represents and warrants that it is
legally authorized to enter into such Assignment and Acceptance.
Section 18.3. REGISTER. The Administrative Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register or similar list
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitment Percentages of, and principal amount, of the Loans owing to
the Lenders from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers and the Lenders at any reasonable time
and from time to time upon reasonable prior notice. Upon each such recordation,
the assigning Lender agrees to pay to the Administrative Agent a registration
fee in the sum of $3,500 (except with respect to any assignment to an Affiliate
of such Lender).
Section 18.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to the
REIT, the Borrowers and the Lenders (other than the assigning Lender). Within
five (5) Business Days after receipt of such notice, the Borrowers, at their own
expense, shall execute and deliver to the Administrative Agent, in exchange for
each surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Lender in
an amount equal to the amount retained by it hereunder. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate
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principal amount equal to the aggregate principal amount of the surrendered
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of the assigned Notes. Upon request
of the Administrative Agent, within five (5) days of issuance of any new Notes
pursuant to this Section 18.4, the Borrowers shall deliver an opinion of
counsel, addressed to the Lenders and the Administrative Agent, relating to the
due authorization, execution and delivery of such new Notes and the legality,
validity and binding effect thereof, in form and substance satisfactory to the
Lenders. The surrendered Notes shall be canceled and returned to the Borrowers.
Section 18.5. PARTICIPATION. Each Lender may sell participations to one or
more Lenders or other entities in all or a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents; PROVIDED that (a)
each such participation shall be in an amount of not less than $5,000,000, (b)
each participant shall meet the requirements of an Eligible Assignee, (c) any
such sale or participation shall not affect the rights and duties of the selling
Lender hereunder to the Borrowers, (d) the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would reduce the principal of or the
interest rate on any Loans subject to such participation, extend the term or
increase the amount of the Commitment of such Lender as it relates to such
participant, reduce the amount of any fees to which such participant is entitled
or extend any regularly scheduled payment date for principal or interest, (e) no
participant shall have the right to grant further participations or assign its
rights, obligations or interests under such participation to other Persons
without the prior written consent of the Majority Lenders and (f) each
participant shall agree to the setoff sharing provisions of Section 13 as
provided in the last sentence of Section 13. Each Obligor agrees, to the fullest
extent permitted by applicable law, that any participant and any Lender
purchasing a participation from another Lender pursuant to this Section 18.5 may
exercise all rights of payment (including the right of set-off), with respect to
its participation as fully as if such participant or such Lender were the direct
creditor of the Obligors and a Lender hereunder in the amount of such
participation.
Section 18.6. PLEDGE BY LENDER. Any Lender may at any time pledge all or
any portion of its interest and rights under this Agreement (including all or
any portion of its Notes) to any of the twelve 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 Lender from its
obligations hereunder or under any of the other Loan Documents.
Section 18.7. NO ASSIGNMENT BY REIT OR BORROWERS. Neither the REIT nor the
Borrowers shall assign or transfer any of its rights or obligations under any of
the Loan Documents without the prior written consent of each of the Lenders.
Section 18.8. DISCLOSURE. The Obligors agree that in addition to
disclosures made in accordance with standard and customary lending practices any
Lender may disclose information obtained by such Lender pursuant to this
Agreement to assignees or participants and potential assignees or participants
hereunder PROVIDED that such assignees or participants agree to be bound by
Section 27.
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Section 19. NOTICES, ETC.
Except as otherwise expressly provided in this Agreement, all notices and
other communications made or required to be given pursuant to this Agreement or
the Notes shall be in writing and shall be delivered in hand, mailed by United
States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telecopy or telefax and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the REIT, the Borrowers or any other Obligor, c/o Heritage
Property Investment Trust, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇, Vice President and Assistant Treasurer,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ or at such other address for notice as the REIT or
the Borrowers shall last have furnished in writing to the Administrative Agent
and the Lenders;
(b) if to the Administrative Agent or Fleet, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Real Estate
Finance Division, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ or such other address for notice
as the Administrative Agent or Fleet, respectively, shall last have furnished in
writing to the REIT, the Borrower and the other Lenders; or
(c) if to any Lender, at such Lender's address set forth on SCHEDULE 1
hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to
have become received and effective (1) if delivered by hand, overnight courier
or facsimile to a responsible officer of the party to which it is directed, at
the time of the receipt thereof by such officer or the sending of such
facsimile, if during normal business hours on a Business Day in the city of
receipt, or otherwise at the opening of business on the following Business Day
and (ii) if sent by registered or certified first-class mail, postage prepaid,
on the third Business Day following the mailing thereof.
Section 20. 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 COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE REIT, EACH BORROWER AND EACH OTHER OBLIGOR
AGREE 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 CONSENT TO THE NONEXCLUSIVE
JURISDICTION OF
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SUCH COURT AND TO SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE REIT,
SUCH BORROWER OR SUCH OTHER OBLIGOR BY MAIL AT THE ADDRESS SPECIFIED IN SECTION
19. THE REIT, EACH BORROWER AND EACH OTHER OBLIGOR HEREBY WAIVE ANY OBJECTION
THAT ANY OF THEM 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 21. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
Section 22. 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 23. 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 25.
Section 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE REIT, THE BORROWERS, THE OTHER OBLIGORS, THE ADMINISTRATIVE
AGENT AND THE LENDERS 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 REIT, EACH
BORROWER AND EACH OTHER OBLIGOR HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. THE REIT, EACH BORROWER AND EACH OTHER
OBLIGOR (A) CERTIFY THAT NO REPRESENTATIVE, ADMINISTRATIVE AGENT OR ATTORNEY OF
ANY LENDER OR THE ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH LENDER OR THE ADMINISTRATIVE AGENT WOULD
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NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGE THAT THE ADMINISTRATIVE AGENT AND THE LENDERS 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
24.
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement or as to any term
or provision hereof which provides for the consent or approval of the
Administrative Agent, no term or provision of this Agreement or any other Loan
Document may be changed, waived, discharged or terminated, nor may any consent
required or permitted by this Agreement or any other Loan Document be given,
unless such change, waiver, discharge, termination or consent receives the
written approval of the Majority Lenders.
Notwithstanding the foregoing, the unanimous written approval of all the
Lenders (other than a Delinquent Lender) shall be required with respect to any
proposed amendment, waiver, discharge, termination, or consent which:
(a) releases or discharges any material portion of the COLLATERAL (if
any) other than in accordance with the express provisions of the Loan Documents
(including without limitation Section 8.9, it being understood that in the event
of a permitted sale of a property included in the COLLATERAL the Administrative
Agent may release its lien on such property without obtaining the consent of any
of the Lenders);
(b) amends, modifies or waives any provision of Section 11.1, 11.2, 11.3
or 11.5; PROVIDED that this clause (b) shall not change the vote required to
amend, modify or waive any other provision of this Agreement or any other Loan
Document;
(c) amends, modifies or waives any provisions of this Section 25;
(d) amends, modifies or waives the definition of Majority Lenders;
(e) has the effect of (i) extending the final scheduled maturity or the
date of any amortization payment of any Revolving Loan or Note, (ii) reducing
the rate or extending the time of payment of interest or fees thereon, (iii)
increasing or reducing (except by payment) the principal amount thereof, or (iv)
otherwise postponing or forgiving any indebtedness thereunder;
(f) except to the extent contemplated by Sections 5.9 or 5.10, releases
any Guarantor; or
(g) except as otherwise provided in this Agreement, changes the amount of
any Lender's Revolving Loan Commitment or Commitment Percentage except upon the
prior written consent of each Lender affected thereby;
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and PROVIDED, FURTHER, that without the consent of the Administrative Agent, no
such action shall amend, modify or waive any provision of Section 14 or any
other provision of any Loan Document which relates to the rights or obligations
of the Administrative Agent. 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 Administrative Agent or any
Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. In particular, no delay or omission on the part of the
Administrative Agent or any Lender in exercising any right under this Agreement
or any other Loan Document or with respect to the Obligations shall operate as a
waiver of such right or any other right hereunder or thereunder. No notice to or
demand upon any Obligor shall entitle any Obligor to other or further notice or
demand in similar or other circumstances. The Majority Lenders agree to respond
in a timely fashion to any request for a consent, approval, amendment, waiver or
other action made by the REIT or the Borrowers hereunder.
Section 26. 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, 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 27. CONFIDENTIALITY.
Each Agent and each Lender will maintain in accordance with their standard
procedures the confidentiality of confidential information furnished to it under
this Agreement or any other Loan Document by the REIT, any Borrower or any of
their respective Subsidiaries unless such information is or shall have become
public (other than through violation of this Section 27), except:
(a) in connection with operations under or the enforcement of this
Agreement or any other Loan Document to Persons who have a reasonable need to be
furnished such confidential information and who agree to comply with the
restrictions contained in this Section 27 with respect to such information;
(b) pursuant to any statutory or regulatory requirement or any mandatory
court order, subpoena or other legal process;
(c) to any parent or corporate affiliate of the Administrative Agent or
such Lender, to any participant or proposed participant under Section 18.5 or to
any proposed assignee under Section 18.1; PROVIDED, HOWEVER, that before
receiving any such information (i) any such Person shall have agreed to comply
with the restrictions set forth in this Section 27 with respect to such
information and (ii) in addition, in the case of a proposed assignee, the
consent of the Borrowers to such proposed assignee shall have been received as
provided in Section 18.1;
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(d) to its independent counsel, auditors and other professional advisors
with an instruction to such Person to keep such information confidential; and
(e) with the prior written consent of the Borrowers, to any other Person.
The provisions of this Section 27 shall supersede the provisions of any
confidentiality letter previously given by any Administrative Agent or Lender to
the REIT, the Borrowers or any other Person in connection with the Loans or the
transactions contemplated by this Agreement.
Section 28. 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 29. DEFEASANCE.
When all Obligations have been paid, performed and reasonably determined by
the Administrative Agent to have been indefeasibly discharged in full, and if at
the time no Letters of Credit are outstanding and no Lender continues to be
committed to extend any credit to the Borrowers hereunder or under any other
Loan Document, this Agreement and the other Loan Documents shall terminate.
Thereupon, on the Obligors' demand and at their cost and expense, the
Administrative Agent shall execute proper instruments, acknowledging
satisfaction of and discharging this Agreement and the other Loan Documents;
PROVIDED, HOWEVER, that Sections 4.7, 4.8, 4.9, 4.12, 5.2, 14.1(h), 15, 16, 17,
19, 20, 23, 24, 28, 29, 30, 31 and 34 shall survive the termination of this
Agreement.
Section 30. NO STRICT CONSTRUCTION.
The parties have participated jointly in the negotiation and drafting of
this Agreement and the other Loan Documents with counsel sophisticated in
financing transactions. In the event an ambiguity or question of intent or
interpretation arises, this Agreement and the other Loan Documents shall be
construed as if drafted jointly by the parties and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement and the other Loan Documents.
Section 31. CERTAIN OBLIGOR ACKNOWLEDGMENTS.
Each of the Borrowers and the other Obligors acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Obligors arising out of or in connection with
this Agreement or any other Loan
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Document, and the relationship between the Administrative Agents and Lenders, on
one hand, and the Obligors, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture among the Obligors and the Lenders is created hereby
or by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby or thereby.
Section 32. REPLACEMENT OF NOTES.
Upon receipt of an affidavit of an officer of the Administrative Agent or
any Lender as to the loss, theft, destruction or mutilation of any Note issued
to a Lender or any other security document which is not of public record, and,
in the case of any such loss, theft, destruction or mutilation, upon
cancellation of such Note or other security document, the Borrowers will issue,
in lieu thereof, a replacement Note or other security document in the same
principal amount thereof and otherwise of the like tenor.
Section 33. USURY LAW LIMITATION.
All agreements between the Borrowers and the other Obligors, on the one
hand, and the Lenders, on the other hand, are hereby expressly limited so that
in no contingency or event whatsoever, whether by reason of acceleration of
maturity of the Loans or otherwise, shall the amount paid or agreed to be paid
to any Lender for the use or the forbearance of the Loans exceed the maximum
permissible under law. As used herein, the term "applicable law" shall
mean the law in effect as of the date hereof, PROVIDED, HOWEVER, that in the
event there is a change in the law which results in a higher permissible rate of
interest, then the Loans shall be governed by such new law as of its effective
date. In this regard, it is expressly agreed that it is the intent of the
Borrowers and the other Obligors, on the one hand, and the Lenders, on the other
hand, in the execution, delivery and acceptance of this Agreement and the Notes
to contract in strict compliance with the laws of The Commonwealth of
Massachusetts from time to time in effect. If, under or from any circumstances
whatsoever, fulfillment of any provision hereof or any of the other Loan
Documents at the time performance of such provision shall be due shall involve
transcending the limit of such validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically be reduced to the limits of such
validity, and if under or from any circumstances whatsoever any Lender should
ever receive as interest an amount which would exceed the highest lawful rate,
such amount which would be excessive interest shall be applied to the reduction
of the principal balance of the Loans and not to the payment of interest or,
upon full payment of the Obligations, returned to the Borrower. This provision
shall control every other provision of all the Loan Documents.
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Section 34. OBLIGATIONS JOINT AND SEVERAL.
The obligations of the Borrowers and the Guarantors in respect of the
Obligations and the Loan Documents are joint and several. The Borrowers agree
that, as among themselves in their capacity as obligors of the Obligations, the
ultimate responsibility for repayment of the Obligations, in the event that
either Borrower fails to pay when due the Obligations, shall be equitably
apportioned, to the extent consistent with the Loan Documents, among the
respective Borrowers (a) in the proportion that each, in its capacity as a
borrower, has benefited from the extensions of credit to the Borrowers by the
Lenders under this Agreement, or (b) if such equitable apportionment cannot
reasonably be determined or agreed upon among the Borrowers, in proportion to
their respective net worths determined on or about the date hereof (or such
later date as such Borrower becomes party hereto). In the event that any
Borrower, in its capacity as such, pays an amount with respect to the
Obligations in excess of its proportionate share as set forth in this Section
34, each other Borrower shall, to the extent consistent with the Loan Documents,
make a contribution payment to such Borrower in an amount such that the
aggregate amount paid by each Borrower reflects its proportionate share of the
Obligations. In the event of any default by any Borrower under this Section 34,
each other Borrower will bear, to the extent consistent with the Loan Documents,
its proportionate share of the defaulting Borrower's obligation under this
Section 34. This Section 34 is intended to set forth only the rights and
obligations of the Borrowers among themselves and shall not in any way affect
the obligations of any Borrower to the Lenders under the Loan Documents (which
obligations shall at all times
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constitute the joint and several obligations of all the Borrowers).
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
BORROWERS
HERITAGE PROPERTY INVESTMENT LIMITED PARTNERSHIP
By: Heritage Property Investment Trust, Inc., its General Partner
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ OPERATING LIMITED PARTNERSHIP
By: Heritage-▇▇▇▇▇▇ Acquisition, Inc, its General Partner
By:
-------------------------------
Name:
Title:
GUARANTORS
HERITAGE PROPERTY INVESTMENT TRUST, INC.
By:
-------------------------------
Name:
Title:
HERITAGE-▇▇▇▇▇▇ ACQUISITION, INC.
By:
-------------------------------
Name:
Title:
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▇▇▇▇▇▇▇ FINANCING CORP.
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ FINANCING PARTNERSHIP
By: ▇▇▇▇▇▇▇ Financing Corp.,
its General Partner
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ SPRING MALL, INC.
By:
-------------------------------
Name:
Title:
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▇▇▇▇▇▇▇ SPRING MALL LIMITED
PARTNERSHIP
By: ▇▇▇▇▇▇▇ Spring Mall, Inc.,
its General Partner
By:
-------------------------------
Name:
Title:
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LENDERS AND AGENTS
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
FLEET NATIONAL BANK, individually as Lender
and as Administrative Agent
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
DEUTSCHE BANK TRUST COMPANY AMERICAS,
individually as Lender and as Syndication Agent
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
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counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
COMMERZBANK AG NEW YORK
AND GRAND CAYMAN BRANCHES,
individually as Lender and as Co-Documentation Agent
By:
-------------------------------
Authorized Officer
Name:
----------------------
Title:
----------------------
By:
-------------------------------
Authorized Officer
Name:
----------------------
Title:
----------------------
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counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually as Lender and as Co-Documentation Agent
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES, individually as Lender
and as Co-Agent
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES, individually as Lender
and as Co-Agent
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
-118-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
SOUTHTRUST BANK
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇
Title: Assistant Vice President
-119-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-120-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
THE BANK OF NEW YORK
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
---------------
-121-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
LASALLE BANK NATIONAL ASSOCIATION
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
-122-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
SOVEREIGN BANK
By:
-------------------------------
Authorized Officer
Name: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-123-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
COMPASS BANK
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
-124-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
CHEVY CHASE BANK, F.S.B.
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-125-
counterpart signature page to
Revolving Credit Agreement and Guaranty
dated as of April __, 2002
among Heritage Property Investment Limited Partnership,
▇▇▇▇▇▇▇ Operating Limited Partnership,
Fleet National Bank, as Administrative Agent,
and certain other Lenders and Agents
COMERICA BANK
By:
-------------------------------
Authorized Officer
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Account Officer
-126-