Exhibit 99.1
$115,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 17, 2006
among
AMERICAN CAMPUS COMMUNITIES OPERATING PARTNERSHIP LP,
as Borrower,
-- ---------
AMERICAN CAMPUS COMMUNITIES, INC.,
as Parent Guarantor,
-- ------ ----------
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors,
-- ---------- -----------
THE INITIAL LENDERS, INITIAL ISSUING BANK
AND SWING LINE BANK NAMED HEREIN,
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
-- ------- -------- ------- ------- ---- --- ----- ---- ----
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent,
-- -------------- ------
KEYBANC CAPITAL MARKETS INC.,
as Lead Arranger,
-- ---- ---------
CITIGROUP GLOBAL MARKETS INC.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Co-Syndication Agents,
-- -------------- -------
and
JPMORGAN CHASE BANK, N.A.,
as Documentation Agent
-- ------------- -----
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................ 1
SECTION 1.01. Certain Defined Terms..................................... 1
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions............................................... 31
SECTION 1.03. Accounting Terms.......................................... 31
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF
CREDIT..................................................... 32
SECTION 2.01. The Advances and the Letters of Credit.................... 32
SECTION 2.02. Making the Advances....................................... 33
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit................................................ 35
SECTION 2.04. Repayment of Advances..................................... 36
SECTION 2.05. Termination or Reduction of the Commitments............... 38
SECTION 2.06. Prepayments............................................... 38
SECTION 2.07. Interest.................................................. 39
SECTION 2.08. Fees...................................................... 40
SECTION 2.09. Conversion of Advances.................................... 41
SECTION 2.10. Increased Costs, Etc...................................... 42
SECTION 2.11. Payments and Computations................................. 43
SECTION 2.12. Taxes..................................................... 46
SECTION 2.13. Sharing of Payments, Etc.................................. 48
SECTION 2.14. Use of Proceeds........................................... 49
SECTION 2.15. Evidence of Debt.......................................... 49
SECTION 2.16. Increase in the Aggregate Commitments..................... 50
SECTION 2.17. Replacement of Lenders Under Certain Circumstances........ 51
SECTION 2.18. Extension of Termination Date............................. 52
ARTICLE III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT.... 52
SECTION 3.01. Conditions Precedent to Initial Extension of Credit....... 52
SECTION 3.02. Conditions Precedent to Each Borrowing, Issuance, Renewal
and Commitment Increase.................................. 55
SECTION 3.03. Determinations Under Section 3.01......................... 56
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................. 56
SECTION 4.01. Representations and Warranties of the Loan Parties........ 56
ARTICLE V COVENANTS OF THE LOAN PARTIES............................... 64
SECTION 5.01. Affirmative Covenants..................................... 64
SECTION 5.02. Negative Covenants........................................ 67
SECTION 5.03. Reporting Requirements.................................... 74
SECTION 5.04. Financial Covenants....................................... 78
-i-
ARTICLE VI EVENTS OF DEFAULT........................................... 79
SECTION 6.01. Events of Default......................................... 79
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.. 82
ARTICLE VII GUARANTY.................................................... 82
SECTION 7.01. Guaranty; Limitation of Liability......................... 82
SECTION 7.02. Guaranty Absolute......................................... 83
SECTION 7.03. Waivers and Acknowledgments............................... 84
SECTION 7.04. Subrogation............................................... 85
SECTION 7.05. Guaranty Supplements...................................... 86
SECTION 7.06. Indemnification by Guarantors............................. 86
SECTION 7.07. Subordination............................................. 86
SECTION 7.08. Continuing Guaranty....................................... 87
ARTICLE VIII THE ADMINISTRATIVE AGENT.................................... 87
SECTION 8.01. Authorization and Action.................................. 87
SECTION 8.02. Administrative Agents' Reliance, Etc...................... 88
SECTION 8.03. Administrative Agent and Affiliates....................... 89
SECTION 8.04. Lender Party Credit Decision.............................. 89
SECTION 8.05. Indemnification by Lender Parties......................... 89
SECTION 8.06. Successor Administrative Agent............................ 90
ARTICLE IX MISCELLANEOUS............................................... 91
SECTION 9.01. Amendments, Etc........................................... 91
SECTION 9.02. Notices, Etc.............................................. 92
SECTION 9.03. No Waiver; Remedies....................................... 93
SECTION 9.04. Costs and Expenses........................................ 93
SECTION 9.05. Right of Set-off.......................................... 95
SECTION 9.06. Binding Effect............................................ 95
SECTION 9.07. Assignments and Participations............................ 95
SECTION 9.08. Execution in Counterparts................................. 99
SECTION 9.09. No Liability of the Issuing Banks......................... 99
SECTION 9.10. Confidentiality........................................... 99
SECTION 9.11. [Intentionally Omitted.].................................. 99
SECTION 9.12. Patriot Act Notification.................................. 99
SECTION 9.13. Jurisdiction, Etc......................................... 100
SECTION 9.14. Governing Law............................................. 100
SECTION 9.15. WAIVER OF JURY TRIAL...................................... 100
-ii-
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Initial Borrowing Base Properties
Schedule III - Reserved
Schedule IV - On-Campus Participating Properties
Schedule V Existing Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(n) - Surviving Debt
Schedule 4.01(o) - Existing Liens
Schedule 4.01(p) - Real Estate Assets
Schedule 4.01(r) - Environmental Matters
Schedule 4.01(x) - Plans and Welfare Plans
Schedule 4.01(y) - Certain Condemnation Proceedings
Schedule 4.01(bb) - Debt of On-Campus Participating Entities
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Issuance
Exhibit D - Form of Guaranty Supplement
Exhibit E - Form of Assignment and Acceptance
Exhibit F-1 - Form of Opinion of Counsel to the Loan Parties
Exhibit F-2 - Form of Opinion of New York Counsel to the Loan Parties
Exhibit G-1 Reserved
Exhibit G-2 Reserved
Exhibit H - Form of Borrowing Base Certificate
-iii-
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 17, 2006
(this "Agreement") among AMERICAN CAMPUS COMMUNITIES OPERATING PARTNERSHIP LP, a
Maryland limited partnership (the "Borrower"), AMERICAN CAMPUS COMMUNITIES,
INC., a Maryland corporation (the "Parent Guarantor"), the other entities listed
on the signature pages hereof as guarantors (together with any Additional
Guarantors (as hereinafter defined) acceding hereto pursuant to Section 7.05,
the "Subsidiary Guarantors" and, together with the Parent Guarantor, the
"Guarantors"), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the initial lenders (the "Initial
Lenders"), KEYBANK NATIONAL ASSOCIATION ("KeyBank"), as the initial issuer of
Letters of Credit (as hereinafter defined) (the "Initial Issuing Bank"), the
Swing Line Bank (as hereinafter defined), KeyBank, as administrative agent
(together with any successor administrative agent appointed pursuant to Article
VIII, the "Administrative Agent") for the Lender Parties (as hereinafter
defined), CITIGROUP GLOBAL MARKETS INC. ("CGMI") and DEUTSCHE BANK TRUST COMPANY
AMERICAS ("DBTCA"), as co-syndication agents, JPMORGAN CHASE BANK, N.A. as
documentation agent ("JPM"), and KEYBANC CAPITAL MARKETS INC., as lead arranger
(the "Arranger").
RECITALS
WHEREAS, Borrower, Guarantors, DBTCA, as Administrative Agent, and the
Lenders then parties thereto entered into that certain Credit Agreement dated as
of August 17, 2004, as amended by that certain First Amendment to Credit
Agreement dated as of November 1, 2004, that certain Second Amendment to Credit
Agreement dated as of December 10, 2004, that certain Third Amendment to Credit
Agreement dated as of June 17, 2005 and that certain Fourth Amendment to Credit
Agreement dated as of February 8, 2006 (as amended, the "Original Credit
Agreement"); and
WHEREAS, pursuant to the Third Amendment to Credit Agreement referenced
above, DBTCA resigned as the Administrative Agent and the "Collateral Agent"
under the Original Credit Agreement and KeyBank became the Administrative Agent
under the Original Credit Agreement; and
WHEREAS, Borrower, Guarantors, Administrative Agent and the Lenders desire
to amend and restate the Original Credit Agreement;
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby amend
and restate the Original Credit Agreement in its entirety and covenant and agree
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACC OP Sweet Home LLC" means ACC OP Sweet Home LLC, a Delaware limited
liability company.
"ACCSI" means American Campus Communities Services, Inc., a Delaware
corporation and a Subsidiary of the Parent Guarantor.
"ACCSI Guaranty" means that certain Guaranty, dated as of September 27,
2000, made by American Campus Communities, L.L.C. ("ACCLLC"), as guarantor, in
favor of Compass Bank, as lender, in connection with certain construction
financing provided by Compass Bank to American Campus (U of H), Ltd., which
Guaranty became the obligation of ACCSI as a result of the conversion of ACCLLC
from a limited liability company to a corporation pursuant to the Delaware
General Corporation Law and the change of its name to "American Campus
Communities Services, Inc.".
"Additional Borrowing Base Property" means any Student Housing Property as
to which all of the following conditions have been met: (a) the Borrower has
notified the Administrative Agent in writing that it wishes to designate such
Student Housing Property as a "Borrowing Base Property", (b) the Borrower has
delivered to the Administrative Agent a description, in detail reasonably
satisfactory to the Administrative Agent, of such Student Housing Property, (c)
unless otherwise agreed in writing by the Required Lenders, all of the Borrowing
Base Property Conditions have been satisfied with respect to such Student
Housing Property, and (d) the Borrower has delivered to the Administrative Agent
a revised Schedule II hereto reflecting the inclusion of such Student Housing
Property within the definition of "Borrowing Base Property", it being understood
that such revised Schedule II shall become effective only upon the inclusion of
such Student Housing Property within the definition of "Borrowing Base
Property".
"Additional Guarantor" has the meaning specified in Section 7.05.
"Administrative Agent" has the meaning specified in the recital of parties
to this Agreement.
"Administrative Agent's Account" means the account of the Administrative
Agent maintained by Administrative Agent at its office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ABA #▇▇▇-▇▇▇-▇▇▇, credit to KREC Loan Services,
Account No. 1140228209012, with reference to American Campus Communities
Operating Partnership, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or such other account as the
Administrative Agent shall specify in writing to the Lender Parties from time to
time.
"Advance" means a Revolving Credit Advance, a Swing Line Advance or a
Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 10% or more of the Voting Interests of such
Person or to direct or cause the direction of the management and policies of
such Person, whether through the ownership of Voting Interests, by contract or
otherwise.
2
"Aggregate Borrowing Base Amount" means, as of any date of determination
with respect to the Borrowing Base Properties, an amount equal to the lesser of
(a) 65% of the aggregate Unencumbered Property Value and (b) the Implied
Mortgage Amount, in each case as determined from the Borrowing Base Certificate
most recently delivered to the Administrative Agent pursuant to Section 5.03(d).
"Agreement" has the meaning specified in the recital of parties to this
Agreement.
"Agreement Value" means, for each Hedge Agreement as of any date of
determination, an amount equal to: (a) in the case of a Hedge Agreement
documented pursuant to the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc. (the
"Master Agreement"), the amount, if any, that would be payable by any Loan Party
or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if
(i) such Hedge Agreement was being terminated early on such date of
determination, (ii) such Loan Party or Subsidiary was the sole "Affected Party"
(as defined in the Master Agreement), and (iii) the Administrative Agent was the
sole party determining such payment amount (with the Administrative Agent making
such determination pursuant to the provisions of the form of Master Agreement);
or (b) in the case of a Hedge Agreement traded on an exchange, the
▇▇▇▇-to-market value of such Hedge Agreement, which will be the unrealized loss
on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party to
such Hedge Agreement as determined by the Administrative Agent based on the
settlement price of such Hedge Agreement on such date of determination, or (c)
in all other cases, the ▇▇▇▇-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement as determined by the
Administrative Agent to be the amount, if any, by which (i) the present value of
the future cash flows to be paid by such Loan Party or Subsidiary exceeds (ii)
the present value of the future cash flows to be received by such Loan Party or
Subsidiary pursuant to such Hedge Agreement.
"Applicable Lending Office" means, with respect to each Lender Party, such
Lender Party's Domestic Lending Office in the case of a Base Rate Advance and
such Lender Party's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means, as of any date of determination, a percentage
per annum determined by reference to the Leverage Ratio as set forth below:
--------------------------------------------------------------------------------
Pricing Applicable Margin for Applicable Margin for
Level Leverage Ratio Base Rate Advances Eurodollar Rate Advances
----- -------------- ------------------ ------------------------
--------------------------------------------------------------------------------
I (Greater than) 60% 0.75% 1.65%
--------------------------------------------------------------------------------
II (Less than or equal to) 0.50% 1.50%
60% but (greater than)
55%
--------------------------------------------------------------------------------
III (Less than or equal to) 0.25% 1.35%
55% but (greater than)
50%
--------------------------------------------------------------------------------
IV (Less than or equal to) 0.00% 1.25%
50%
--------------------------------------------------------------------------------
3
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the Leverage Ratio in effect from time to time, and the Applicable
Margin for any Interest Period for all Eurodollar Rate Advances comprising part
of the same Borrowing shall be determined by reference to the Leverage Ratio in
effect on the first day of such Interest Period; provided, however that (a) no
change in the Applicable Margin resulting from a change in the Leverage Ratio
shall be effective until three Business Days after the date on which the
Administrative Agent receives (x) the financial statements required to be
delivered pursuant to Section 5.03(b) or (c), as the case may be, and (y) a
certificate of the Chief Financial Officer of the Borrower demonstrating the
Leverage Ratio, and (b) the Applicable Margin shall be at Pricing Level I for so
long as the Borrower has not submitted to the Administrative Agent, as and when
required under Section 5.03(b) or (c), as applicable, the information described
in clause (a) of this proviso.
"Arranger" has the meaning specified in the recital of parties to this
Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender Party and an Eligible Assignee, and accepted by the Administrative
Agent, in accordance with Section 9.07 and in substantially the form of Exhibit
E hereto.
"Assuming Lender" has the meaning specified in Section 2.16(d).
"Assumption Date" has the meaning specified in Section 2.16(d).
"Available Amount" means, with respect to any Letter of Credit at any time,
the maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means any applicable law governing a proceeding of the
type referred to in Section 6.01(f) or Title 11, U.S. Code, or any similar
foreign, federal or state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of (a)
the rate of interest announced publicly by KeyBank in Cleveland, Ohio, from time
to time, as KeyBank's "prime rate" and (b) 0.50% per annum above the Federal
Funds Rate. The Base Rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to a customer. A change in the rate of
interest payable hereunder and resulting from a change in the Base Rate shall
become effective as of the opening of business on the day on which such change
in the Base Rate becomes effective, without notice or demand of any kind.
"Base Rate Advance" means an Advance that bears interest as provided in
Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
4
"Borrower's Account" means the account of the Borrower maintained by the
Borrower with JPMorgan Chase Bank at its office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ABA No. ▇▇▇▇▇▇▇▇▇, Account No. 00113388202, or
such other account as the Borrower shall specify in writing to the
Administrative Agent from time to time.
"Borrowing" means each of (a) a Swing Line Borrowing or (b) a borrowing
consisting of simultaneous Revolving Credit Advances of the same Type made by
the Lenders.
"Borrowing Base Certificate" means a certificate in substantially the form
of Exhibit H hereto, duly certified by the Chief Financial Officer of the Parent
Guarantor.
"Borrowing Base Properties" means, collectively, as of any date of
determination, (a) each Initial Borrowing Base Property plus (b) each Additional
Borrowing Base Property minus (c) each Removed Borrowing Base Property; provided
that, unless otherwise agreed in writing by the Required Lenders, if any Initial
Borrowing Base Property or Additional Borrowing Base Property shall at any time
fail to satisfy the Borrowing Base Property Conditions, such Initial Borrowing
Base Property or Additional Borrowing Base Property shall be excluded from the
definition of "Borrowing Base Property."
"Borrowing Base Property Conditions" means, collectively, the following
conditions with respect to any Student Housing Property, each of which shall be
established to the satisfaction of the Administrative Agent: (a) such Student
Housing Property is 100% owned by the Borrower or a Subsidiary Guarantor either
(i) in fee simple or (ii) pursuant to and under a ground lease which (A) has a
remaining term of at least 30 years (after giving effect to any renewal terms
that are exercisable at the sole option of Borrower or the applicable Subsidiary
Guarantor), (B) contains customary leasehold mortgagee protection rights, and
(C) is mortgageable without the applicable ground lessor's consent (or with only
such consents as shall have been obtained); (b) no Person other than a Loan
Party has any direct or indirect ownership of any Equity Interest or other
voting interest in Borrower or such Subsidiary Guarantor (it being understood
that no such Person shall be deemed to have any such ownership interest for
purposes of this definition solely by virtue of (i) owning any Equity Interest
in the Parent Guarantor, (ii) owning any limited partnership interests in the
Borrower; provided that, in the case of this clause (ii), at least 51% of the
limited partnership interests in the Borrower are at all times owned by the
Parent Guarantor, or (iii) in the case of the Ground Leased Property (Temple),
the ownership by the Ground Lessor (Temple) of a 1.0% membership interest in the
Loan Party which owns the Ground Leased Property (Temple); provided that, in the
case of this clause (iii), such Loan Party retains control of all decisions
relating to the financing and management of the Ground Leased Property (Temple),
subject to the terms of the Ground Lease (Temple)); (c) such Student Housing
Property and the interest of Borrower and any Guarantor therein is subject to no
Liens or negative pledge other than with respect to any Student Housing Property
those described in clauses (a), (b), (d) and (e) of the definition of "Permitted
Liens"; (d) construction of such Student Housing Property is complete, a
certificate of occupancy has been issued for such Student Housing Property (or
such Student Housing Property may otherwise be lawfully occupied for its
intended use), and such Student Housing Property is not otherwise a Development
Property; (e) such Student Housing Property is free of material title defects
and structural defects, has all Environmental Permits applicable thereto and is
not subject to any material Environmental Claim or otherwise in violation of any
Environmental Law if the result of such violation would be reasonably likely to
result in a material adverse effect on the value of such Student Housing
Property; (f) such Student Housing Property is managed by the Borrower or one of
its Subsidiaries; (g) such Student Housing Property is located entirely in a
state within the United States; (h) such Student Housing Property has been
designated as a "Borrowing Base Property" on Schedule II or in a Borrowing Base
Certificate in accordance with Section 5.03(i), and in either event has not been
removed as a Borrowing Base Property pursuant to Section 5.03(d), (i) with
respect to which Student Housing Property the Administrative Agent shall have
received the Borrowing Base Qualification Documents (which shall be promptly
distributed by Administrative Agent to the Lenders); and (j) all other
applicable conditions set forth in Section 3.01(a) have been satisfied with
respect to such Subsidiary Guarantor and such Student Housing Property (such
satisfaction to be determined mutatis mutandis for any Additional Borrowing Base
Property). In addition to the foregoing conditions, with respect to the Student
Housing Property owned by 1772 Sweet Home Road, LLC, the following conditions
shall apply, each of which shall be established to the satisfaction of the
Administrative Agent: (i) such Student Housing Property is 100% owned by 1772
Sweet Home Road, LLC; (ii) ACC OP Sweet Home LLC shall be a Subsidiary
Guarantor; (iii) ACC OP Sweet Home LLC shall be the managing member of 1772
Sweet Home Road, LLC and shall retain control of all decisions relating to the
financing, sale, leasing and management of the Student Housing Property owned by
1772 Sweet Home Road, LLC; and (iv) 1772 Sweet Home Road, LLC shall have no
Debt.
5
"Borrowing Base Qualification Documents" means, with respect to any Student
Housing Property which the Borrower seeks to include as a Borrowing Base
Property in the calculation of the Aggregate Borrowing Base Amount, the
following which are to be received by Administrative Agent not less than five
(5) Business Days prior to any addition of such Student Housing Property to the
Borrowing Base Properties: (a) a formal written request of Borrower to
Administrative Agent to add a Student Housing Property as a Borrowing Base
Property; (b) the Borrowing Base Certificate required by Section 5.03(d); (c) if
such Student Housing Property is owned or leased by a Subsidiary Guarantor, such
Subsidiary Guarantor shall have executed and delivered to Administrative Agent a
Guaranty Supplement and such other documents described in Section 3.01(a)(iii),
(iv), (v), (vi), (vii), (x), (xi) and (xii) as Administrative Agent may
reasonably require; (d) historic operating statements, if available, for the
prior eight (8) fiscal quarters; (e) a current rent roll certified by the
Borrower and showing such information as the Administrative Agent may reasonably
require; (f) a projected operating budget for such Student Housing Property for
the next four (4) fiscal quarters of the Borrower; (g) a budget setting forth
any capital expenditures to be made with respect to such Student Housing
Property within the following twelve (12) month period, in form and substance
satisfactory to the Administrative Agent; and (h) a certification of an officer
of Borrower that such Student Housing Property meets each of the Borrowing Base
Property Conditions. With respect to the Student Housing Property owned by 1772
Sweet Home Road, LLC, ACC OP Sweet Home LLC shall remain a Subsidiary Guarantor
and shall deliver to Administrative Agent the documents described in Section
3.01.
6
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Capitalization Rate" means 8.0%.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Capitalized Value" means, for any Real Estate Asset as of any date of
determination, an amount equal to (a) the Net Operating Income for such Real
Estate Asset divided by (b) the Capitalization Rate.
"Capital Reserve" means an amount equal to $190 multiplied by the weighted
average number of beds attributed (in accordance with the historical practices
of the Parent Guarantor and its Subsidiaries) to all Student Housing Properties
of the Consolidated Entities as of the end of such period.
"Cash" means money, currency or a credit balance in a Deposit Account.
"Cash Equivalents" means, as of any date of determination, any of the
following to the extent owned by the Borrower or any of its Subsidiaries: (a)
readily marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or readily marketable obligations
unconditionally guaranteed by the full faith and credit of the Government of the
United States, in each case maturing within one year after such date; (b)
readily marketable direct obligations issued by any State of the United States
or any political subdivision of any such State or any public instrumentality
thereof, in each case maturing within one year after such date and having, at
the time of the acquisition thereof, the highest rating obtainable from either
S&P or ▇▇▇▇▇'▇; (c) certificates of deposit of or time deposits with any
commercial bank that (i) is a Lender Party or a member of the Federal Reserve
System, (ii) issues (or the parent of which issues) commercial paper rated as
described in clause (d) below, (iii) is organized under the laws of the United
States or any State thereof and (iv) has combined capital and surplus of at
least $1,000,000,000, in each case maturing within one year after such date; and
(d) commercial paper in an aggregate amount of not more than $50,000,000 per
issuer outstanding at any time, maturing within 270 days after such date and
issued by any corporation organized under the laws of any State of the United
States and rated at least "Prime 1" (or the then equivalent grade) by ▇▇▇▇▇'▇ or
"A 1" (or the then equivalent grade) by S&P.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time.
7
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency.
"CGMI" has the meaning specified in the recital of parties to this
Agreement.
"Change of Control" means the occurrence of any of the following: (a) any
Person or two or more Persons acting in concert shall have acquired and shall
continue to have following the date of the Original Credit Agreement beneficial
ownership (within the meaning of Rule 13d 3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of Voting Interests of the Parent Guarantor (or other securities convertible
into such Voting Interests) representing 35% or more of the combined voting
power of all Voting Interests of the Parent Guarantor; or (b) during any period
of up to 12 consecutive months, commencing after the date of the Original Credit
Agreement, individuals who at the beginning of such 12-month period were
directors of the Parent Guarantor shall cease for any reason to constitute a
majority of the board of directors of the Parent Guarantor unless Persons
replacing such individuals were nominated by the board of directors of the
Parent Guarantor or, in the case of each such individual, the Person replacing
such individual was nominated by the same institution that nominated the Person
being replaced; or (c) any Person or two or more Persons acting in concert shall
have acquired and shall continue to have following the date of the Original
Credit Agreement, by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of the power to direct, directly or indirectly, the management or
policies of the Parent Guarantor; or (d) the Parent Guarantor ceases to be the
general partner of the Borrower; or (e) the Parent Guarantor ceases to be the
legal and beneficial owner of all of the general partnership interests in the
Borrower or ceases to be the legal and beneficial owner of at least 51% of the
limited partnership interests in the Borrower; or (f) the Parent Guarantor shall
create, incur, assume or suffer to exist any Lien on the Equity Interests in the
Borrower owned by it.
"Closing Date" means the date on which the conditions set forth in Article
III are satisfied and the Initial Extension of Credit is made.
"Commitment" means a Revolving Credit Commitment, a Swing Line Commitment
or a Letter of Credit Commitment.
"Commitment Date" has the meaning specified in Section 2.16(b). "Commitment
Increase" has the meaning specified in Section 2.16(a).
"Communications" has the meaning specified in Section 9.02(b).
"Completion Guarantee" means a guarantee entered into in the ordinary
course of business by the Borrower or any of its Subsidiaries with respect to
the completion of construction of a Student Housing Property.
8
"Confidential Information" means information that any Loan Party furnishes
to Administrative Agent or any Lender Party in writing designated as
confidential, but does not include any such information (a) that is or becomes
generally available to the public or (b) that is or becomes available to
Administrative Agent or such Lender Party from a source other than the Loan
Parties in a manner that does not violate a confidentiality agreement or
undertaking that is known to Administrative Agent or such Lender Party.
"Consolidated Adjusted EBITDA" means, as of any date of determination,
Consolidated EBITDA as of such date of determination for the four fiscal-quarter
period of the Parent Guarantor most recently ended minus the Capital Reserve.
"Consolidated Cash Interest Expense" means, for any period, an amount equal
to (a) consolidated total interest expense of the Consolidated Entities for such
period minus (b) any non-cash amounts included in such consolidated total
interest expense which reflect the amortization of deferred financing charges
for such period plus (c) any interest capitalized by the Consolidated Entities
during such period, excluding any such capitalized interest related to debt
incurred to fund Development Properties.
"Consolidated EBITDA" means, for any period, without duplication, the
consolidated net income or loss of the Consolidated Entities for such period
(before deduction for minority interests in any of the Consolidated Entities and
excluding any adjustments for so-called "straight-line rent accounting"); plus
(A) the amount of any dividends or other distributions actually paid to any of
the Consolidated Entities by any of the On-Campus Participating Entities during
such period; plus (B) the following items to the extent deducted in computing
such consolidated net income for such period: (i) consolidated interest expense
of the Consolidated Entities for such period, (ii) consolidated income tax
expense of the Consolidated Entities for such period, and (iii) consolidated
real estate depreciation, amortization and other extraordinary and non-cash
items of the Consolidated Entities for such period (except, in the case of such
other non-cash items, to the extent that a cash payment will be required to be
made in respect thereof in a future period); minus (C) the following items to
the extent included in computing such consolidated net income for such period:
(i) all consolidated gains (or plus all consolidated losses) attributable to any
sales or other dispositions of assets or debt restructurings of the Consolidated
Entities in such period, and (ii) all income (or plus all losses) from all
Unconsolidated Entities; plus (or minus, as applicable) (D) the Unconsolidated
Allocation Percentage of any of the items described above in this definition
that are attributable to any Unconsolidated Entity for such period.
"Consolidated Entities" means the Parent Guarantor and its Consolidated
Subsidiaries.
"Consolidated Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Adjusted EBITDA to (b) Consolidated
Fixed Charges, in each case for the four fiscal-quarter period of the Parent
Guarantor most recently ended for which financial statements are required to be
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the case
may be.
9
"Consolidated Fixed Charges" means, for any period, the sum, without
duplication, of (i) Consolidated Cash Interest Expense for such period, (ii)
dividends paid by any of the Consolidated Entities in respect of any Preferred
Interests of such Consolidated Entity during such period, other than any such
dividends paid by such Consolidated Entity to another Consolidated Entity, (iii)
the scheduled principal amount of all amortization payments (other than balloon
payments) on all Debt of the Consolidated Entities for such period, other than
any such Debt owed to another Consolidated Entity, and (iv) the Unconsolidated
Allocation Percentage of any of the items described above in this definition
that are attributable to any Unconsolidated Entity for such period.
"Consolidated Fixed Rate/Hedged Debt Ratio" means, as of any date of
determination, the ratio, expressed as a percentage, of (a) that portion of
Consolidated Total Indebtedness which, either directly or after giving effect to
one or more Hedge Agreements to which the a Consolidated Entity is a party,
bears interest at a fixed rate per annum for the period from such date of
determination to and including the earlier of the Termination Date or the final
maturity of such portion of Consolidated Total Indebtedness, to (b) Consolidated
Total Indebtedness.
"Consolidated Net Worth" means, as of any date of determination, an amount
equal to (a) Consolidated Total Asset Value minus (b) Consolidated Total
Indebtedness.
"Consolidated Subsidiaries" means, collectively, all Subsidiaries of the
Parent Guarantor other than the On-Campus Participating Entities and their
Subsidiaries.
"Consolidated Total Asset Value" means, as of any date of determination,
the sum of the following amounts on such date, all as determined for the
Consolidated Entities on a consolidated basis in accordance with GAAP: (i)
unrestricted Cash and Cash Equivalents (ii) the Capitalized Value of all Real
Estate Assets (other than unimproved land and Development Properties) owned by
any Consolidated Entity for more than four full fiscal quarters as of such date,
(iii) without duplication, the undepreciated book value of (a) all Real Estate
Assets owned or in operation by any Consolidated Entity for less than four full
fiscal quarters as of such date, (b) all unimproved land, and (c) all
Development Properties, and (iv) the Unconsolidated Allocation Percentage of any
of the items described above in this definition that are attributable to any
Unconsolidated Entity as of such date.
"Consolidated Total Indebtedness" means, as of any date of determination,
an amount equal to the sum of (i) the aggregate amount of all Debt of the
Consolidated Entities as of such date, determined on a consolidated basis in
accordance with GAAP, plus (ii) the Unconsolidated Allocation Percentage of any
Debt that is attributable to any Unconsolidated Entity as of such date.
Consolidated Total Indebtedness shall not include any Qualifying Trust Preferred
Obligations.
10
"Contingent Obligation" means, with respect to any Person, any Obligation
or arrangement of such Person to guarantee or intended to guarantee any Debt,
leases, dividends or other payment Obligations ("primary obligations") of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (c) any Obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Contingent Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such Contingent Obligation is made (or, if less, the maximum amount of
such primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith; provided that the amount of any Completion Guaranty as of
any date of determination shall be deemed to be the maximum reasonably
anticipated liability of the Person providing such Completion Guaranty after
taking into account any actual or projected cost overruns in connection with the
construction of the related Student Housing Property as well as any other
factors which are reasonably likely to result in the incurrence of any costs or
expenses by such Person under such Completion Guaranty . Anything contained
herein to the contrary notwithstanding, the term "Contingent Obligation" shall
not include (x) any Obligation or arrangement of a Consolidated Entity which
guarantees or is intended to guarantee any lease, dividend or other payment
Obligation, other than Debt, of another Consolidated Entity or (y) the ACCSI
Guaranty; provided, however, that the ACCSI Guaranty shall be included within
the definition of "Contingent Obligation" in the event that (1) the U of H
Contingent Payment Obligation ceases to be in full force and effect, (2) The
University of Houston or any of its publicly-issued debt securities cease to
have an investment grade rating, or (3) the Debt guaranteed pursuant to the
ACCSI Guaranty is accelerated or otherwise becomes due and payable prior to its
stated final maturity.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.07(d), 2.09 or 2.10.
"Cullen Oaks Phase II Guaranty" means the guaranty by ACCSI of the
obligations of American Campus (U of H), Ltd. with respect to the Cullen Oaks
Phase II Loan, which guaranty, as it pertains to the principal amount of the
Cullen Oaks Phase II Loan, shall be limited to the amount of $4,000,000.
▇▇
"▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ II Loan" means Debt incurred by American Campus (U of
H), Ltd. in connection with construction financing provided by Compass Bank in
an aggregate principal amount of $17,041,824 on the terms and conditions set
forth in that certain Construction Loan Agreement dated December 17, 2004
between Compass Bank and American Campus (U of H), Ltd., as the same has been
and may be amended, renewed and/or extended from time to time on terms
satisfactory to the Administrative Agent and the Required Lenders.
"Customary Carve-Out Agreement" has the meaning specified in the definition
of Non-Recourse Debt.
"DBTCA" has the meaning specified in the recital of parties to this
Agreement.
"Debt" of any Person means, without duplication for purposes of calculating
financial ratios, (a) all Debt for Borrowed Money of such Person, (b) all
Obligations of such Person for the deferred purchase price of property or
services , which purchase price is (i) due more than six months from the date of
incurrence of the Obligation in respect thereof or (ii) evidenced by a note or
similar written instrument, (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all Obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
that portion of any Obligations of such Person as lessee under Capitalized
Leases that is properly classified as a liability on the balance sheet of such
Person in conformity with GAAP, (f) the face amount of all Obligations of such
Person under acceptance, letter of credit or similar facilities, (g) all
Obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interests in such Person or any other
Person (other than Preferred Interests that are issued by any Loan Party or
Subsidiary thereof and classified as either equity or minority interests
pursuant to GAAP) or any warrants, rights or options to acquire such Equity
Interests, (h) all Obligations of such Person in respect of Hedge Agreements,
valued at the Agreement Value thereof, (i) all Contingent Obligations of such
Person and (j) all indebtedness and other payment Obligations referred to in
clauses (a) through (i) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such indebtedness or other payment
Obligations.
"Debt for Borrowed Money" of any Person means all items that, in accordance
with GAAP, would be classified as indebtedness on a consolidated balance sheet
of such Person.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
12
"Deposit Account" has the meaning assigned to that term in the Uniform
Commercial Code as in effect in any applicable jurisdiction.
"Development Property" means any Real Estate Asset owned or acquired by the
Borrower or any of its Subsidiaries and on which the Borrower or any of its
Subsidiaries is actively pursuing construction of one or more buildings for use
as a Student Housing Property and for which construction is proceeding to
completion without undue delay from permit denial, construction delays or
otherwise, all pursuant to the ordinary course of business of the Borrower or
such Subsidiary; provided that any Student Housing Property will no longer be
considered to be a Development Property when a certificate of occupancy has been
issued for such Student Housing Property or such Student Housing Property may
otherwise be lawfully occupied for its intended use.
"Disclosed Litigation" has the meaning specified in Section 3.01(f).
"Distribution Percentage" means as of any date of determination, the
percentage of the cash which would be distributed to ACC OP Sweet Home LLC
pursuant to the terms of the operating agreement of 1772 Sweet Home Road, LLC,
assuming a hypothetical cash distribution following a sale of assets of 1772
Sweet Home Road, LLC. The amount available for such distribution shall be an
amount equal to (A) the Net Operating Income (without any adjustment based upon
the Distribution Percentage) of 1772 Sweet Home Road, LLC divided by (B) the
Capitalization Rate. The Distribution Percentage shall be an amount equal to the
quotient obtained by dividing (x) the total cash that would be distributed to
ACC OP Sweet Home LLC in connection with such distribution by (y) the total
amount of cash that would be distributed as a result of such sale.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Administrative Agent.
"Eligible Assignee" means (a) with respect to the Revolving Credit
Facility, (i) a Lender; (ii) an Affiliate or Fund Affiliate of a Lender; (iii) a
commercial bank organized under the laws of the United States, or any State
thereof, respectively, and having total assets in excess of $500,000,000; (iv) a
savings and loan association or savings bank organized under the laws of the
United States or any State thereof, and having total assets in excess of
$500,000,000; (v) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having total assets in excess of $500,000,000, so long as such bank is acting
through a branch or agency located in the United States; (vi) the central bank
of any country that is a member of the OECD; (vii) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having total assets in excess of $500,000,000; and (viii) any other Person
approved by the Administrative Agent and, unless a Default has occurred and is
continuing at the time any assignment is effected pursuant to Section 9.07, the
Borrower, each such approval not to be unreasonably withheld or delayed, and (b)
with respect to the Letter of Credit Facility, a Person that is an Eligible
Assignee under subclause (iii) or (v) of this definition and is approved by the
Administrative Agent and, unless a Default has occurred and is continuing at the
time any assignment is effected pursuant to Section 9.07, approved by the
Borrower, such approval not to be unreasonably withheld or delayed; provided,
however, that neither any Loan Party nor any Affiliate of a Loan Party shall
qualify as an Eligible Assignee under this definition.
13
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to health, safety or
the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any applicable Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing as of
any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
14
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of any Loan Party, or under common control
with any Loan Party, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30 day
notice requirement with respect to such event has been waived by the PBGC or
(ii) the requirements of Section 4043(b) of ERISA apply with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and
an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with respect
to a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any
Loan Party or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the rate per annum (rounded
upward, if necessary, to the nearest 1/100 of 1%) appearing on Dow ▇▇▇▇▇ Markets
(formerly Telerate) Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period equal to
such Interest Period or, if for any reason such rate is not available, the
average (rounded upward, if necessary, to the nearest 1/100 of 1%, if such
average is not such a multiple) of the rate per annum at which deposits in U.S.
dollars are offered by the principal office of the Reference Bank in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to the Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
(or, if the Reference Bank shall not have such a Eurodollar Rate Advance,
U.S.$1,000,000) and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
15
"Eurodollar Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Letters of Credit" means the Letters of Credit issued by KeyBank
and described on Schedule V hereto.
"Facility" means the Revolving Credit Facility, the Swing Line Facility or
the Letter of Credit Facility, as applicable.
"Facility Exposure" means, as of any date of determination, the sum of the
aggregate principal amount of all outstanding Advances and the Available Amount
under all outstanding Letters of Credit.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means the fee letter dated June 23, 2006, between the Borrower
and KeyBank, as the same may be amended from time to time.
"Fiscal Year" means a fiscal year of the Consolidated Entities ending on
December 31 in any calendar year.
16
"Fund Affiliate" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Funds From Operations" means, for any period for the Parent Guarantor and
its Subsidiaries on a consolidated basis (and in accordance with the standards
established by the Board of Governors of NAREIT in its March 1995 White Paper,
as amended in November 1999 and April 2000), net income (computed in accordance
with GAAP), excluding gains (or losses) from sales of property and extraordinary
and unusual items, plus depreciation and amortization, and after adjustments for
any Unconsolidated Entities. Adjustments for Unconsolidated Entities will be
calculated to reflect funds from operations on the same basis. Notwithstanding
the foregoing, Funds from Operations shall exclude the non-cash compensation
expenses related to awards granted under the Parent Guarantor's 2004 incentive
award plan.
"GAAP" means, subject to the limitations on the application thereof set
forth in Section 1.03, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination.
"Good Faith Contest" means the contest of an item as to which: (a) such
item is contested in good faith, by appropriate proceedings, (b) reserves that
are adequate are established with respect to such contested item in accordance
with GAAP and (c) the failure to pay or comply with such contested item during
the period of such contest is not reasonably likely to result in a Material
Adverse Effect.
"Ground Lease (Temple)" means that certain ground lease between Temple
University-Of the Commonwealth System of Higher Education, as ground lessor, and
ACT-Village at Temple, LLC, as ground lessee, dated as of October 2, 2003, as
the same has been, and may hereafter be, amended, modified and supplemented from
time to time in accordance with the terms hereof and thereof and pursuant to
that certain Ground Lease Agreement, dated October 2, 2003, between Temple
University and ACT-Village at Temple LLC, that certain First Amendment to Ground
Lease Agreement, dated October 2, 2003, that certain Second Amendment to Ground
Lease Agreement, dated October 20, 2003, that certain Memorandum of Lease, dated
October 3, 2003, between ACT-Village at Temple LLC and Temple University, that
certain Amended and Restated Indemnity Agreement executed by Borrower and Temple
University of the Commonwealth System of Higher Education, dated October 20,
2003, that certain Replacement Reserve and Escrow Agreement, dated October 2,
2003, between ACT-Village at Temple, LLC and Temple University, that certain Bed
Leasing Agreement executed by Borrower and Temple University of the Commonwealth
System of Higher Education, dated January 16, 2004 and that certain Completion
Guaranty, dated as of October 28, 2003, by RAP Student Housing Properties, LLC
to and for the benefit of Temple University of the Commonwealth System of Higher
Education.
17
"Ground Leased Property (Temple)" means the Student Housing Property
located at Temple University, Philadelphia, Pennsylvania, which property is
subject to the Ground Lease (Temple).
"Ground Lessor (Temple)" means Temple University-Of the Commonwealth System
of Higher Education, together with its successors and assigns, as ground lessor
under the Ground Lease (Temple).
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guarantors" means, collectively, the Parent Guarantor and the Subsidiary
Guarantors.
"Guaranty" means the Guaranty by the Guarantors pursuant to Article VII,
together with any and all Guaranty Supplements delivered pursuant to Section
7.05.
"Guaranty Supplement" means a supplement entered into by an Additional
Guarantor in substantially the form of Exhibit D hereto.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls, radon gas and mold and (b) any other
chemicals, materials or substances designated, classified or regulated as
hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other hedging agreements.
"Implied Mortgage Amount" means, as of any date of determination with
respect to the Borrowing Base Properties, an amount equal to the aggregate Net
Operating Income for the Borrowing Base Properties divided by the product of (i)
the Mortgage Constant, (ii) 12 and (iii) 1.30, in each case as determined from
the Borrowing Base Certificate most recently delivered to the Administrative
Agent pursuant to Section 5.03(d); provided that for purposes of calculating Net
Operating Income for any Start-Up Student Housing Property, the Net Operating
Income attributable to such Start-Up Student Housing Property shall be
calculated on an annualized basis using the sum of (A) the actual historical
results for the period that the Start-Up Student Housing Property was owned and
operated by the Borrower or such Subsidiary Guarantor and (B) the proforma
results, as approved by the Administrative Agent, for the future period
necessary to achieve an annualized number.
"Increase Date" has the meaning specified in Section 2.16(a).
"Increasing Lender" has the meaning specified in Section 2.16(b).
"Indemnified Costs" has the meaning specified in Section 8.05(a).
18
"Indemnified Party" has the meaning specified in Section 7.06(a).
"Initial Borrowing Base Property" means each Student Housing Property
described on Schedule II hereto as of the Closing Date, and "Initial Borrowing
Base Properties" means all such Student Housing Properties, collectively.
"Initial Extension of Credit" means the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Bank" means KeyBank.
"Initial Lenders" has the meaning specified in the recital of parties to
this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 12:00 Noon (New York City time) on the third
Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with respect to any
Eurodollar Rate Advance that ends after the Termination Date;
(b) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided, however, that
if such extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day in
the calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar month.
19
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" in any Person means any loan or advance to such Person (other
than advances to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business),
any purchase or other acquisition of any Equity Interests or Debt or the assets
comprising a division or business unit or a substantial part or all of the
business of such Person, any capital contribution to such Person or any other
direct or indirect investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation and any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (i) or (j) of
the definition of "Debt" in respect of such Person. The amount of any Investment
shall be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.
"Issuing Bank" means the Initial Issuing Bank and any other Lender approved
as an Issuing Bank by the Administrative Agent and the Borrower and any Eligible
Assignee to which a Letter of Credit Commitment hereunder has been assigned
pursuant to Section 9.07 so long as each such Lender or each such Eligible
Assignee expressly agrees to 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 an Issuing Bank and notifies the Administrative Agent of its Applicable
Lending Office and the amount of its Letter of Credit Commitment (which
information shall be recorded by the Administrative Agent in the Register) for
so long as such Initial Issuing Bank, Lender or Eligible Assignee, as the case
may be, shall have a Letter of Credit Commitment.
"JPM" has the meaning specified in the recital of parties to this
Agreement.
"KeyBank" means KeyBank National Association.
"L/C Cash Collateral Account" means the account of the Borrower maintained
with the Administrative Agent, in the name of the Administrative Agent and under
the sole control and dominion of the Administrative Agent and subject to the
terms of this Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(c)(ii)(A).
"Lender Party" means any Lender, the Swing Line Bank or any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or
Person, as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by any Issuing Bank or any
Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section 2.03(a).
20
"Letter of Credit Commitment" means, with respect to any Issuing Bank at
any time, the amount set forth opposite such Issuing Bank's name on Schedule I
hereto under the caption "Letter of Credit Commitment" or, if such Issuing Bank
has entered into one or more Assignment and Acceptances, set forth for such
Issuing Bank in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time, and (b) $15,000,000, as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(b).
"Leverage Ratio" means, as of any date of determination, the ratio,
expressed as a percentage, of (a) Consolidated Total Indebtedness to (b)
Consolidated Total Asset Value, in each case as at the end of the most recently
ended fiscal quarter of the Parent Guarantor for which financial statements are
required to be delivered to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be.
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means, collectively, (a) this Agreement, (b) the Notes,
(c) the Fee Letter, (d) each Letter of Credit Agreement, and (e) each Guaranty
Supplement, in each case as amended.
"Loan Parties" means the Borrower and the Guarantors.
"Management Agreement" means any property management agreement relating to
any Borrowing Base Property.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), results of operations or prospects
of the Loan Parties, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations or prospects of the
Loan Parties, taken as a whole, (b) the rights and remedies of Administrative
Agent or any Lender Party under any Loan Document, (c) the ability of any Loan
Party to perform its Obligations under any Loan Document to which it is or is to
be a party or (d) the value of the Borrowing Base Properties.
21
"Material Contract" means any contract or other arrangement to which any
Loan Party is a party (other than the Loan Documents) for which breach,
nonperformance, cancellation or failure to renew could reasonably be expected to
have a Material Adverse Effect.
"Material Debt" has the meaning specified in Section 6.01(e).
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc. and any successor thereto.
"Mortgage Constant" means, as of any date of determination, the monthly
factor determined by the Administrative Agent by reference to a standard level
constant payment table for a fully amortizing loan with a maturity of 25 years
based upon an assumed per annum interest rate equal to the greater of (i) the
seven-year U.S. Treasury rate plus 1.75% or (ii) 7%.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any issuance or sale of any
Equity Interests of the Parent Guarantor or any of its Subsidiaries, the Cash
proceeds of such issuance or sale net of underwriting discounts and commissions
and other reasonable costs and expenses associated therewith, including
reasonable legal fees and expenses.
"Net Operating Income" means, for any Real Estate Asset as of any date of
determination, an amount equal to (A) the aggregate gross revenues from the
operations of such Real Estate Asset during the four fiscal-quarter period
most-recently ended, excluding any accrued revenues attributable to so-called
"straight-line rent accounting"; minus (B) the sum of (i) all expenses and other
proper charges incurred in connection with the operation of such Real Estate
Asset during such period (including real estate taxes, but excluding any
management fees, debt service charges, income taxes, depreciation, amortization,
capital reserves and other non-cash expenses), and (ii) an assumed management
fee equal to 5% of the aggregate gross revenues from the operations of such Real
Estate Asset during such period. Following the calculation of the SUNY Allocable
Net Operating Income, then for purposes of determining the Capitalized Value and
the Implied Mortgage Amount with respect to the Student Housing Property owned
by 1772 Sweet Home Road, LLC, the SUNY Allocable Net Operating Income shall be
utilized instead of the Net Operating Income from such Student Housing Property.
22
"Non-Recourse Debt" means Debt for Borrowed Money with respect to which
recourse for payment is limited to (a) any building(s) and/or parcel(s) of real
property and/or any related assets encumbered by a Lien securing such Debt for
Borrowed Money and/or (b) the general credit of any Property-Level Subsidiary
and/or the Equity Interests therein and/or the general credit of the immediate
parent entity of such Property-Level Subsidiary, provided that such parent
entity's assets consist solely of Equity Interests in one or more Property-Level
Subsidiaries, it being understood that the instruments governing such Debt may
include customary carve-outs to such limited recourse (any such customary
carve-outs or agreements limited to such customary carve-outs, being a
"Customary Carve-Out Agreement") such as, for example, personal recourse to the
Parent Guarantor or any of its Subsidiaries for fraud, willful
misrepresentation, misapplication or misappropriation of cash, waste,
environmental claims, damage to properties, non-payment of taxes or other liens
despite the existence of sufficient cash flow, interference with the enforcement
of loan documents upon maturity or acceleration, violation of loan document
prohibitions against voluntary or involuntary bankruptcy filings, transfer of
properties or ownership interests therein and liabilities and other
circumstances customarily excluded by lenders from exculpation provisions and/or
included in separate indemnification agreements in non-recourse financings of
real estate.
"Note" means a promissory note of the Borrower payable to the order of any
Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances made by such Lender.
"Notice" has the meaning specified in Section 9.02(c).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(b).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(b).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment, performance or
other obligation of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to reimburse
any amount in respect of any of the foregoing that any Lender Party, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
23
"OECD" means the Organization for Economic Cooperation and Development.
"On-Campus Participating Entities" means each of (a) American Campus
(Laredo), Ltd., (b) American Campus (PVAMU) Ltd., (c) American Campus (U of H),
Ltd., (d) American Campus (PVAMU IV) Ltd., each of which entities described in
(a)-(d) holds all of the right, title and interest of the Parent Guarantor and
its Subsidiaries in one of the On-Campus Participating Properties, and (e) any
other entity approved by the Required Lenders pursuant to Section 5.02(f).
"On-Campus Participating Properties" means, collectively, the Student
Housing Properties described on Schedule IV attached hereto, together with any
additional Student Housing Properties owned by On-Campus Participating Entities
approved pursuant to Section 5.02(f).
"Original Credit Agreement" has the meaning specified in the recitals to
this Agreement.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent Guarantor" has the meaning specified in the recital of parties to
this Agreement.
"Patriot Act" has the meaning specified in Section 9.12.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Liens" means: (a) Liens for taxes, assessments or governmental
charges or levies the payment of which is not, at the time, required by Section
5.01(b); (b) statutory Liens of banks and rights of set-off and other Liens
imposed by law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations, in each case that (i) are not overdue for a
period of more than 30 days and (ii) individually or together with all other
Permitted Liens outstanding as of any date of determination do not materially
adversely affect the use of the property to which they relate unless, in the
case of (i) or (ii) above, such liens are the subject of a Good Faith Contest;
(c) pledges or deposits to secure obligations under workers' compensation laws
or similar legislation or to secure public or statutory obligations; (d)
easements, zoning restrictions, rights of way, restrictive covenants and other
non-monetary encumbrances on title to real property that do not render title to
the property encumbered thereby unmarketable or materially adversely affect the
use or value of such property for its intended purposes; (e) Tenancy Leases; (f)
with respect to Real Estate Assets encumbered by Secured Debt or Non-Recourse
Debt, easements, zoning restrictions, rights of way, restrictive covenants and
other Liens affecting such real property that are permitted to exist under the
terms of the agreements governing such Secured Debt or Non-Recourse Debt; (g)
Liens incurred or deposits made in the ordinary course of business to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment of
borrowed money); (h) any attachment or judgment Lien not constituting an Event
of Default; (i) any (i) interest or title of a lessor or sublessor under any
lease not prohibited by this Agreement, (ii) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (iii)
subordination of the interest of the lessee or sublessee under such lease to any
restriction or encumbrance referred to in the preceding subclause (ii), so long
as the holder of such restriction or encumbrance agrees to recognize the rights
of such lessee or sublessee under such lease; and (j) Liens arising from filing
UCC financing statements relating solely to leases not prohibited by this
Agreement.
24
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Platform" has the meaning specified in Section 9.02(b).
"Post Petition Interest" has the meaning specified in Section 7.07(c).
"Preferred Interests" means, with respect to any Person, Equity Interests
issued by such Person that are entitled to a preference or priority over any
other Equity Interests issued by such Person upon any distribution of such
Person's property and assets, whether by dividend or upon liquidation.
"Property-Level Subsidiary" means any Subsidiary of the Borrower that holds
a direct fee or leasehold interest in any single building (or group of related
buildings, including, without limitation, buildings pooled for purposes of a
Non-Recourse Debt financing) and/or parcel (or group of related parcels,
including, without limitation, parcels pooled for purposes of a Non-Recourse
Debt financing) of real property and related assets and not in any other
building or parcel of real property.
"Pro Rata Share" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such
Lender's Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the Revolving Credit Facility at
such time (or, if the Commitments shall have been terminated pursuant to Section
2.05 or 6.01, the Revolving Credit Facility as in effect immediately prior to
such termination).
"Qualifying Trust Preferred Obligation" means any Indebtedness of the
Consolidated Entities which (i) has an original maturity of not less than thirty
(30) years, (ii) is not putable to the Consolidated Entities, (iii) is
non-amortizing and provides for payment of interest only not more often than
quarterly, (iv) imposes no financial covenants on the Consolidated Entities, (v)
is subordinated to the Loan Documents and the Obligations of the Loan Parties
thereunder on such terms as are reasonably acceptable to the Administrative
Agent; and (vi) when aggregated with any other such Indebtedness then
outstanding does not exceed the greater of (a) $65,000,000 or (b) five percent
(5%) of the then-current Consolidated Total Asset Value.
25
"Real Estate Asset" means, as of any date of determination, any fee or
leasehold interest then owned by any Loan Party in any real property.
"Reference Bank" means KeyBank.
"Refinancing Debt" means, with respect to any Debt, any Debt extending the
maturity of, or refunding or refinancing, in whole or in part, such Debt,
provided that (a) the terms of any Refinancing Debt, and of any agreement
entered into and of any instrument issued in connection therewith, do not
provide for any Lien on any Borrowing Base Property and are otherwise permitted
by the Loan Documents, (b) the principal amount of such Refinancing Debt shall
not exceed the principal amount of the Debt being extended, refunded or
refinanced, (c) any Liens securing such Refinancing Debt shall not encumber any
property or assets other than the property or assets that secured the Debt being
extended, refunded or refinanced (and any improvements thereon) and (d) the
other material terms, taken as a whole, of such Refinancing Debt are no less
favorable in any material respect to the Loan Parties or the Lender Parties than
the terms governing the Debt being extended, refunded or refinanced (it being
understood that the mere extension of the maturity of any Surviving Debt that is
Non-Recourse Debt shall be deemed to qualify as Refinancing Debt hereunder).
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REIT" means a Person that is qualified to be treated for tax purposes as a
real estate investment trust under Sections 856-860 of the Internal Revenue
Code.
"Removed Borrowing Base Property" means any Student Housing Property
previously included within the definition of "Borrowing Base Property" as to
which all of the following conditions have been met: (a) the Borrower has
notified the Administrative Agent in writing that it wishes to exclude such
Student Housing Property from the definition of "Borrowing Base Property" as a
result of the sale or other permanent disposition or refinancing of such
Borrowing Base Property, (b) no Default or Event of Default has occurred and is
continuing at the time such Student Housing Property is excluded from the
definition of "Borrowing Base Property" or would result from such exclusion, and
(c) prior to the exclusion of such Student Housing Property from the definition
of "Borrowing Base Property", the Borrower has delivered to the Administrative
Agent a Borrowing Base Certificate demonstrating that, after giving effect to
such exclusion, (i) the Aggregate Borrowing Base Amount will be equal to or
greater than the sum of (A) the Facility Exposure plus (B) the amount of all
other Unsecured Debt and (ii) unless otherwise approved in writing by the
Required Lenders, there will be not less than four Borrowing Base Properties
having an Aggregate Borrowing Base Amount of not less than $60,000,000.
26
"Required Lenders" means, at any time, Lenders owed or holding greater than
66 2/3% of the sum of (a) the aggregate principal amount of all Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of
Credit outstanding at such time and (c) the aggregate Unused Revolving Credit
Commitments at such time. For purposes of this definition, the aggregate
principal amount of any Swing Line Advances owing to the Swing Line Bank and any
Letter of Credit Advances owing to any Issuing Bank, and the Available Amount of
each Letter of Credit, shall each be considered to be owed to the Revolving
Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"Responsible Officer" means, with respect to any Loan Party or any of its
Subsidiaries, any officer of, or any officer of any general partner or managing
member of, such Loan Party or such Subsidiary.
"Revolving Credit Advance" has the meaning specified in Section 2.01(a).
"Revolving Credit Commitment" means, (a) with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or (b) if such Lender has
entered into one or more Assignment and Acceptances, set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Lender's "Revolving Credit Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount of the
Lenders' Revolving Credit Commitments at such time.
"S&P" means Standard & Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and any successor thereto.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended.
"Securities Act" means the Securities Act of 1933, as amended to the date
hereof and from time to time hereafter, and any successor statute.
"Secured Debt" means as of any given date the amount of the Consolidated
Total Indebtedness that is secured in any manner by any Lien.
"Secured Recourse Debt" means as of any given date the amount of the
Secured Debt less the amount of Non-Recourse Debt.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
27
"1772 Sweet Home Road, LLC" means 1772 Sweet Home Road, LLC, a Delaware
limited liability company.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or
any ERISA Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person, on a going-concern
basis, is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person, on a going-concern basis, is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay such debts and liabilities as they mature and (d) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
an unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time (including, without limitation, after taking
into account appropriate discount factors for the present value of future
contingent liabilities), represents the amount that can reasonably be expected
to become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Start-Up Student Housing Property" means a Student Housing Property that
either (a) has not been owned by Borrower or a Subsidiary Guarantor for a period
of four full fiscal quarters, or (b) if such Student Housing Property was a
Development Property of Borrower or one of its Subsidiaries, such Student
Housing Property has ceased to be a Development Property for less than a period
of four full fiscal quarters.
"Student Housing Property" means all right, title and interest of the
Borrower and its Subsidiaries in and to any land and any improvements thereon
comprising a student housing property that is located in the United States and
within reasonably close proximity to any college, university or other
institution of higher learning located in the United States or which is marketed
primarily to students, employees or faculty of such college, university or other
institution, together with all equipment, furniture, materials, supplies and
personal property in which the Borrower or any of its Subsidiaries has an
interest and which is now or hereafter located on or used in connection with
such student housing property, and all appurtenances, additions, improvements,
renewals, substitutions and replacements thereof now or hereafter acquired by
the Borrower or any of its Subsidiaries.
28
"Subordinated Obligations" has the meaning specified in Section 7.07(a).
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in
such trust or estate, in each case, is at the time directly or indirectly owned
or controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries. Without
limiting the foregoing, 1772 Sweet Home Road, LLC is a Subsidiary of Loan
Parties.
"Subsidiary Guarantor" has the meaning specified in the recital of parties
to this Agreement.
"SUNY Allocable Net Operating Income" means, as any date of determination,
an amount equal to (A) the Net Operating Income from the Student Housing
Property owned by 1772 Sweet Home Road, LLC (without any adjustment based upon
the Distribution Percentage) multiplied by (B) the Distribution Percentage as of
the end of the most recently-ended fiscal quarter.
"SUNY Allocable Book Value" means, as of any date of determination, an
amount equal to (A) the undepreciated book value of the Student Housing Property
owned by 1772 Sweet Home Road, LLC multiplied by (B) the Distribution Percentage
as of the end of the most recently ended fiscal quarter.
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after the Closing Date.
"Swing Line Advance" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(c) or (b) any Lender pursuant to Section 2.02(b).
"Swing Line Bank" means KeyBank, in its capacity as the Lender of Swing
Line Advances, and its successors and permitted assigns in such capacity.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line Advance
made by the Swing Line Bank pursuant to Section 2.01(c) or the Lenders pursuant
to Section 2.02(b).
"Swing Line Commitment" means, with respect to the Swing Line Bank, the
amount of the Swing Line Facility set forth in Section 2.01(c), as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"Swing Line Facility" has the meaning specified in Section 2.01(c).
"Taxes" has the meaning specified in Section 2.12(a).
29
"Tenancy Leases" means operating leases, subleases, licenses, occupancy
agreements and rights-of-use entered into by the Borrower or any of its
Subsidiaries in its capacity as a lessor or a similar capacity in the ordinary
course of business that do not materially and adversely affect the use of the
Real Estate Asset encumbered thereby for its intended purpose.
"Termination Date" means the earlier of (a) August 17, 2009, as such date
may be extended as provided in Section 2.18, and (b) the date of termination in
whole of the Revolving Credit Commitments, the Letter of Credit Commitments and
the Swing Line Commitment pursuant to Section 2.05 or 6.01.
"Trade Letter of Credit" means any Letter of Credit that is issued under
the Letter of Credit Facility for the benefit of a supplier of inventory to the
Borrower or any of its Subsidiaries to effect payment for such Inventory.
"Transfer" has the meaning specified in Section 5.02(e).
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unconsolidated Allocation Percentage" means, as of any date of
determination with respect to any Unconsolidated Entity, the aggregate
percentage ownership interest of the Consolidated Entities in such
Unconsolidated Entity as of such date.
"Unconsolidated Entity" means, as of any date of determination, any Person
in which the Parent Guarantor or any of its Subsidiaries holds an Investment and
whose financial results would not be consolidated under GAAP with the financial
results of the Parent Guarantor and its Subsidiaries if consolidated financial
statements of the Parent Guarantor and its Subsidiaries were prepared as of such
date.
"Unencumbered Property Value" means, as of any date of determination, the
sum of the following amounts on such date, all as determined for the
Consolidated Entities on a consolidated basis in accordance with GAAP: (i) the
Capitalized Value of all Borrowing Base Properties owned by the Borrower or a
Subsidiary Guarantor for four full fiscal quarters or more as of such date, plus
(ii) the undepreciated book value of all Borrowing Base Properties owned or in
operation by the Borrower or a Subsidiary Guarantor for less than four full
fiscal quarters as of such date, in each case as determined from the Borrowing
Base Certificate most recently delivered to the Administrative Agent pursuant to
Section 5.03(d). Notwithstanding the foregoing, if the Unencumbered Property
Value of the Borrowing Base Asset owned by 1772 Sweet Home Road, LLC shall be
determined pursuant to clause (ii) above, then such value shall be determined
based upon the SUNY Allocable Book Value instead of the undepreciated book value
of such Property.
"Unsecured Debt" means as of any given date the amount of the Consolidated
Total Indebtedness which is not Secured Indebtedness.
"Unused Fee" has the meaning specified in Section 2.08(a).
30
"Unused Revolving Credit Commitment" means, with respect to any Lender at
any time, (a) such Lender's Revolving Credit Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time plus (ii) such
Lender's Pro Rata Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks pursuant to Section 2.03(c)
and outstanding at such time and (C) the aggregate principal amount of all Swing
Line Advances made by the Swing Line Bank pursuant to Section 2.01(c) and
outstanding at such time.
"U of H Contingent Payment Obligation" has the meaning assigned to the term
"Contingent Payment Obligation" in the U of H Ground Lease.
"U of H Ground Lease" means that certain Ground Lease Agreement dated as of
September 26, 2000, by and between The Board of Regents of the University of
Houston System, as lessor for the use and benefit of The University of Houston,
and American Campus (U of H), Ltd., as lessee.
"Voting Interests" means shares of capital stock issued by a corporation,
or equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA,
that is maintained for employees of any Loan Party or in respect of which any
Loan Party could have liability.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Loan Documents in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. Except as otherwise expressly provided in
this Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP. Financial statements and
other information required to be delivered by the Borrower to the Administrative
Agent pursuant to Sections 5.03(b), (c) and (f) shall be prepared in accordance
with GAAP as in effect at the time of such preparation (and delivered together
with the reconciliation statements, if any, provided for in Section 5.03(g)).
Except as otherwise provided in the definitions contained herein, calculations
in connection with the definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in conformity with
those applied in the preparation of the financial statements referred to in
Section 4.01(g).
31
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Revolving
Credit Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "Revolving Credit Advance") to
the Borrower from time to time on any Business Day during the period from the
date hereof until the Termination Date in an amount for each such Advance not to
exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple
of $100,000 in excess thereof and shall consist of Revolving Credit Advances
made simultaneously by the Lenders ratably according to their Revolving Credit
Commitments. Within the limits of each Lender's Unused Revolving Credit
Commitment in effect from time to time and prior to the Termination Date, the
Borrower may borrow under this Section 2.01(a), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank severally agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "Letters of
Credit"), for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 60 days before the Termination Date
in an aggregate Available Amount (i) for all Letters of Credit not to exceed at
any time the Letter of Credit Facility at such time, (ii) for all Letters of
Credit issued by such Issuing Bank not to exceed such Issuing Bank's Letter of
Credit Commitment at such time, and (iii) for each such Letter of Credit not to
exceed the aggregate of the Unused Revolving Credit Commitments of the Lenders
at such time. All Letters of Credit shall be denominated in Dollars and shall be
issued on a sight basis only. No Letter of Credit shall have an expiration date
later than the earlier of the date that is 60 days before the Termination Date
and (A) in the case of a Standby Letter of Credit, the date that is one year
after the date of issuance thereof, but may by its terms provide that such
expiration date will be automatically extended annually for a period of up to
one year on terms acceptable to the Issuing Bank that issues such Standby Letter
of Credit and (B) in the case of a Trade Letter of Credit, 60 days after the
date of issuance thereof; provided, however, that the terms of each Standby
Letter of Credit that is automatically extendible annually shall not permit the
expiration date (after giving effect to any extension) of such Standby Letter of
Credit in any event to be extended to a date later than 60 days before the
Termination Date. Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.01(b), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(b).
(c) The Swing Line Advances. The Borrower may request the Swing Line Bank
to make, and the Swing Line Bank agrees to make, on the terms and conditions
hereinafter set forth, Swing Line Advances to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date (i) in an aggregate amount not to exceed at any time outstanding
$15,000,000 (the "Swing Line Facility") and (ii) in an amount for each such
Swing Line Borrowing not to exceed the aggregate of the Unused Revolving Credit
Commitments of the Lenders at such time. No Swing Line Advance shall be used for
the purpose of funding the payment of principal of any other Swing Line Advance.
Each Swing Line Borrowing shall be in an amount of $100,000 or an integral
multiple of $100,000 in excess thereof and shall be made as a Base Rate Advance.
Within the limits of the Swing Line Facility and within the limits referred to
in clause (ii) above, the Borrower may borrow under this Section 2.01(c), repay
pursuant to Section 2.04(b) or prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(c).
32
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.03, each Borrowing shall be made on notice, given not later than 12:00
Noon (New York City time) on the third Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate
Advances, or not later than 1:00 P.M. (New York City time) on the first Business
Day prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof by telex or telecopier.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, or telex or telecopier or e-mail, in each case
in substantially the form of Exhibit B hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Lender shall, before 12:00 Noon (New York City time) on the date
of such Borrowing in the case of a Borrowing consisting of Eurodollar Rate
Advances and 1:00 P.M. (New York City time) on the date of such Borrowing in the
case of a Borrowing consisting of Base Rate Advances, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments of such Lender
and the other Lenders. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by crediting
the Borrower's Account; provided, however, that the Administrative Agent shall
first make a portion of such funds equal to the aggregate principal amount of
any Swing Line Advances and Letter of Credit Advances made by the Swing Line
Bank or any Issuing Bank, as the case may be, and by any other Lender and
outstanding on the date of such Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or such Issuing
Bank, as the case may be, and such other Lenders for repayment of such Swing
Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not later than
12:00 Noon (New York City time) on the date of the proposed Swing Line
Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent.
Each such notice of a Swing Line Borrowing (a "Notice of Swing Line Borrowing")
shall be by telephone, confirmed immediately in writing or by telecopier or
e-mail, in each case specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing
(which maturity shall be no later than the earlier of (A) the seventh day after
the requested date of such Borrowing and (B) the Termination Date). The Swing
Line Bank shall, before 1:00 P.M. (New York City time) on the date of such Swing
Line Borrowing, make the amount thereof available to the Administrative Agent at
the Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account. Upon written
demand by the Swing Line Bank, with a copy of such demand to the Administrative
Agent, each other Lender shall purchase from the Swing Line Bank, and the Swing
Line Bank shall sell and assign to each such other Lender, such other Lender's
Pro Rata Share of such outstanding Swing Line Advance as of the date of such
demand, by making available for the account of its Applicable Lending Office to
the Administrative Agent for the account of the Swing Line Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. The Borrower hereby agrees to each such sale and
assignment. Each Lender agrees to purchase its Pro Rata Share of an outstanding
Swing Line Advance on (i) the Business Day on which demand therefor is made by
the Swing Line Bank, provided that notice of such demand is given not later than
12:00 Noon (New York City time) on such Business Day or (ii) the first Business
Day next succeeding such demand if notice of such demand is given after such
time. Upon any such assignment by the Swing Line Bank to any other Lender of a
portion of a Swing Line Advance, the Swing Line Bank represents and warrants to
such other Lender that the Swing Line Bank is the legal and beneficial owner of
such interest being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such Swing Line Advance,
the Loan Documents or any Loan Party. If and to the extent that any Lender shall
not have so made the amount of such Swing Line Advance available to the
Administrative Agent, such Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Swing Line Bank until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such amount for the account of the Swing
Line Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Swing Line Advance made by such Lender on such Business Day for
purposes of this Agreement, and the outstanding principal amount of the Swing
Line Advance made by the Swing Line Bank shall be reduced by such amount on such
Business Day.
33
(c) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrower may not select Eurodollar Rate Advances for the initial Borrowing
hereunder or for any Borrowing if the aggregate amount of such Borrowing is less
than $3,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.07(d)(ii), 2.09 or 2.10
and (ii) there may not be more than eight separate Borrowings outstanding at any
time.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss, cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a
Lender prior to (x) the date of any Borrowing consisting of Eurodollar Rate
Advances or (y) 12:00 Noon (New York City time) on the date of any Borrowing
consisting of Base Rate Advances that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
34
(f) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 12:00 Noon (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent prompt notice thereof by telex, telecopier or e-mail or by
means of the Platform. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by facsimile, confirmed in writing via overnight
courier for delivery on the immediately succeeding Business Day, in each case in
the form of Exhibit C attached hereto and specifying therein the requested (i)
date of such issuance (which shall be a Business Day), (ii) Available Amount of
such Letter of Credit, (iii) expiration date of such Letter of Credit, (iv) name
and address of the beneficiary of such Letter of Credit and (v) form of such
Letter of Credit, and shall be accompanied by such application and agreement for
letter of credit as such Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to
such Issuing Bank in its sole discretion, such Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article III, make such
Letter of Credit available to the Borrower at its office referred to in Section
9.02 or as otherwise agreed with the Borrower in connection with such issuance.
In the event and to the extent that the provisions of any Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern. The Existing Letters of Credit shall upon the Closing Date be
deemed to be a Letter of Credit under this Agreement.
(b) [Intentionally Omitted.]
(c) Drawing and Reimbursement. The payment by any Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by any Issuing Bank with an outstanding Letter of Credit Advance, with a copy of
such demand to the Administrative Agent, each Lender shall purchase from such
Issuing Bank, and such Issuing Bank shall sell and assign to each such Lender,
such Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of
the date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of such Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to such Issuing Bank. The
Borrower hereby agrees to each such sale and assignment. Each Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i)
the Business Day on which demand therefor is made by the Issuing Bank which made
such Advance, provided that notice of such demand is given not later than 11:00
A.M. (New York City time) on such Business Day, or (ii) the first Business Day
next succeeding such demand if notice of such demand is given after such time.
Upon any such assignment by an Issuing Bank to any Lender of a portion of a
Letter of Credit Advance, such Issuing Bank represents and warrants to such
other Lender that such Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents or any Loan Party. If and to the
extent that any Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Lender agrees to pay
to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by such Issuing Bank
until the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate for its account or the account of such Issuing Bank, as applicable.
If such Lender shall pay to the Administrative Agent such amount for the account
of such Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Letter of Credit Advance made by such Lender on
such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
35
(d) Failure to Make Letter of Credit Advances. The failure of any Lender to
make the Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c) shall not relieve any other Lender of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Lenders on the Termination Date the aggregate outstanding principal amount of
the Revolving Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to the Administrative
Agent for the account of (i) the Swing Line Bank and (ii) each other Lender that
has made a Swing Line Advance by purchase from the Swing Line Bank pursuant to
Section 2.02(b), the outstanding principal amount of each Swing Line Advance
made by each of them on the earlier of the maturity date specified in the
applicable Notice of Swing Line Borrowing (which maturity shall be no later than
the seventh day after the requested date of such Swing Line Borrowing) and the
Termination Date.
36
(c) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of each Issuing Bank and each other Lender
that has made a Letter of Credit Advance on the same day on which such Advance
was made the outstanding principal amount of each Letter of Credit Advance made
by each of them.
(ii) The Obligations of the Borrower under this Agreement, any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of
Credit (and the obligations of each Lender to reimburse the Issuing Bank with
respect thereto) shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the "L/C
Related Documents");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of any
L/C Related Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for which any such beneficiary or any such
transferee may be acting), any Issuing Bank or any other Person, whether in
connection with the transactions contemplated by the L/C Related Documents or
any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from the Guaranties or
any other guarantee, for all or any of the Obligations of the Borrower in
respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor;
37
provided that, notwithstanding the foregoing, an Issuing Bank shall not be
relieved of any liability it may otherwise have as a result of its gross
negligence or willful misconduct (as determined by a final and non-appealable
judgment of a court of competent jurisdiction).
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Swing Line Facility, the Letter of Credit Facility and the Unused
Revolving Credit Commitments; provided, however, that each partial reduction of
a Facility (i) shall be in an aggregate amount of $3,000,000 (or in the case of
the Swing Line Facility, $100,000) or an integral multiple of $500,000 (or in
the case of the Swing Line Facility, $100,000) in excess thereof and (ii) shall
be made ratably among the Lenders in accordance with their Commitments with
respect to such Facility.
(b) Mandatory. (i) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
(ii) The Swing Line Facility shall be permanently reduced from time to
time on the date of each reduction in the Revolving Credit Facility by the
amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon same day
notice in the case of Base Rate Advances and two Business Days' notice in the
case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that
(i) each partial prepayment shall be in an aggregate principal amount of
$500,000 or an integral multiple of $100,000 in excess thereof or, if less, the
amount of the Advances outstanding and (ii) if any prepayment of a Eurodollar
Rate Advance is made on a date other than the last day of an Interest Period for
such Advance, the Borrower shall also pay any amounts owing pursuant to Section
9.04(c).
(b) Mandatory. (i) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Swing Line Advances and the Letter of Credit Advances
and deposit an amount in the L/C Cash Collateral Account in an amount equal to
the amount by which (A) the sum of (1) the Facility Exposure plus (2) the amount
of all other Unsecured Debt exceeds (B) the lesser of (1) the Aggregate
Borrowing Base Amount and (2) the Revolving Credit Facility.
(ii) The Borrower shall, on each Business Day, pay to the Administrative
Agent for deposit in the L/C Cash Collateral Account an amount sufficient to
cause the aggregate amount on deposit in the L/C Cash Collateral Account to
equal the amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on such Business
Day.
38
(iii) Prepayments of the Revolving Credit Facility made pursuant to
clause (i) above shall be first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second applied to prepay Swing
Line Advances then outstanding until such Advances are paid in full, third
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full and fourth deposited in
the L/C Cash Collateral Account to cash collateralize 100% of the Available
Amount of the Letters of Credit then outstanding. Upon the drawing of any Letter
of Credit for which funds are on deposit in the L/C Cash Collateral Account,
such funds shall be applied to reimburse the relevant Issuing Bank or Lenders,
as applicable.
(iv) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the Base
Rate in effect from time to time plus (B) the Applicable Margin in effect from
time to time, payable in arrears quarterly on the last day of each September,
December, March and June, during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable Margin in effect on the
first day of such Interest Period, payable in arrears on the last day of such
Interest Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full; provided, however, that in the event that the Interest Period
for an Advance shall be for a period of six months, then interest with respect
to such Advance shall also be payable in arrears on the three-month anniversary
of the commencement of such Interest Period.
(b) Default Interest. Upon the occurrence and during the continuance of any
Event of Default, the Borrower shall pay interest on (i) the unpaid principal
amount of each Advance owing to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable under the Loan Documents that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid,
in the case of interest, on the Type of Advance on which such interest has
accrued pursuant to clause (a)(i) or (a)(ii) above and, in all other cases, on
Base Rate Advances pursuant to clause (a)(i) above.
39
(c) Notice of Interest Period and Interest Rate. Promptly after receipt of
a Notice of Borrowing pursuant to Section 2.02(a), a notice of Conversion
pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant
to the terms of the definition of "Interest Period", the Administrative Agent
shall give notice to the Borrower and each Lender of the applicable Interest
Period and the applicable interest rate determined by the Administrative Agent
for purposes of clause (a)(i) or (a)(ii) above, and the applicable rate, if any,
furnished by the Reference Bank for the purpose of determining the applicable
interest rate under clause (a)(ii) above.
(d) Interest Rate Determination.
(i) Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate.
(ii) If Dow ▇▇▇▇▇ Markets (formerly Telerate) Page 3750 is unavailable
and Reference Bank is unable to furnish timely information to the Administrative
Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar Rate
Advances,
(B) each such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or if such
Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.08. Fees. (a) Unused Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders an unused commitment fee
(the "Unused Fee"), from the date hereof in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date, payable in arrears on the last day of each September, December, March and
June, commencing September 30, 2006, and on the Termination Date. The Unused Fee
payable for the account of each Lender shall be calculated for each period for
which the Unused Fee is payable on the average daily Unused Revolving Credit
Commitment of such Lender during such period at the rate of (i) 0.20% per annum
at any time the Facility Exposure is less than 50% of the Revolving Credit
Facility and (ii) 0.15% at any time the Facility Exposure is equal to or greater
than 50% of the Revolving Credit Facility.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent, for the account of each Lender, a commission with respect
to each Letter of Credit outstanding from time to time, payable in arrears, (a)
quarterly on the last day of each September, December, March and June,
commencing September 30, 2006, and (b) on the Termination Date, on such Lender's
Pro Rata Share of the average daily Available Amount of such Letter of Credit
during the applicable quarter at a rate per annum equal to the Applicable Margin
for Eurodollar Rate Advances in effect from time to time.
40
(ii) The Borrower shall pay to each Issuing Bank, for its own account,
(A) a fronting fee for each Letter of Credit issued by such Issuing Bank and
outstanding from time to time, payable in arrears, (a) quarterly on the last day
of each September, December, March and June, commencing September 30, 2006, and
(b) on the Termination Date, on the average daily Available Amount of such
Letter of Credit during the applicable quarter at a rate per annum equal to
0.125%; provided that in any event the minimum amount of the fronting fee
payable in any 12-month period with respect to any Letter of Credit shall be
$500; and (B) such other commissions, issuance fees, transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit as the Borrower and such Issuing Bank shall agree.
(c) Administrative Agents' Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees, in such amounts and payable
at such times, as may from time to time be agreed between the Borrower and the
Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 12:00
Noon (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.07 and 2.10,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(c), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the Lenders
in accordance with their Commitments under such Facility. Each such notice of
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $3,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
41
(iii) Upon the occurrence and during the continuance of any Event of
Default, (y) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(z) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
adopted or made after the date hereof, there shall be any increase in the cost
to any Lender Party of agreeing to make or of making, funding or maintaining
Eurodollar Rate Advances or of agreeing to issue or of issuing or maintaining or
participating in Letters of Credit or of agreeing to make or of making or
maintaining Letter of Credit Advances (excluding, for purposes of this Section
2.10, any such increased costs resulting from (y) Taxes or Other Taxes (as to
which Section 2.12 shall govern) and (z) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, within 10 days after demand
by such Lender Party (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost;
provided, however, that, before making any such demand, such Lender Party agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party. A certificate as to the amount of such increased cost, submitted
to the Borrower by such Lender Party, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender Party determines that either (i) the introduction of or
any change in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) adopted or made
after the date hereof results in any change in the amount of capital required or
expected to be maintained by such Lender Party or any corporation controlling
such Lender Party and that the amount of such capital is increased by or based
upon the existence of such Lender Party's commitment to lend or to issue or
participate in Letters of Credit hereunder and other commitments of such type or
the issuance or maintenance of or participation in the Letters of Credit (or
similar contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's commitment to
lend or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Borrower by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
42
(c) If, with respect to any Eurodollar Rate Advances, the Required Lenders
notify the Administrative Agent that the Eurodollar Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each such Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if after the
date of this Agreement the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, (i) each Eurodollar Rate
Advance will automatically, upon such demand, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off (except as otherwise provided in Section 2.13), not later than 12:00
Noon (New York City time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same day funds,
with payments being received by the Administrative Agent after such time being
deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
43
(b) The Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party any amount
so due.
(c) All computations of interest based on the Base Rate, the Eurodollar
Rate or the Federal Funds Rate and of fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent under this
Agreement or any of the other Loan Documents is insufficient to pay in full all
amounts due and payable to the Administrative Agent and the Lender Parties under
or in respect of this Agreement and the other Loan Documents on any date, such
payment shall be distributed by the Administrative Agent and applied by the
Administrative Agent and the Lender Parties in the following order of priority:
44
(i) first, to the payment of all of the fees, indemnification payments,
costs and expenses that are due and payable to the Administrative Agent (solely
in its capacity as Administrative Agent) under or in respect of this Agreement
and the other Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such fees, indemnification payments, costs and expenses
owing to the Administrative Agent on such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing Banks
(solely in their respective capacities as such) under or in respect of this
Agreement and the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such fees, indemnification payments, costs
and expenses owing to the Issuing Banks on such date;
(iii) third, to the payment of all of the indemnification payments,
costs and expenses that are due and payable to the Lenders under Section 9.04
and any similar section of any of the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such indemnification
payments, costs and expenses owing to the Lenders on such date;
(iv) fourth, to the payment of all of the amounts that are due and
payable to the Administrative Agent and the Lender Parties under Sections 2.10
and 2.12 on such date, ratably based upon the respective aggregate amounts
thereof owing to the Administrative Agent and the Lender Parties on such date;
(v) fifth, to the payment of all of the fees that are due and payable to
the Lenders under Section 2.08(a) on such date, ratably based upon the
respective aggregate Commitments of the Lenders under the Facilities on such
date;
(vi) sixth, to the payment of all of the accrued and unpaid interest on
the Obligations of the Borrower under or in respect of the Loan Documents that
is due and payable to the Administrative Agent and the Lender Parties under
Section 2.07(b) on such date, ratably based upon the respective aggregate
amounts of all such interest owing to the Administrative Agent and the Lender
Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid interest
on the Advances that is due and payable to the Administrative Agent and the
Lender Parties under Section 2.07(a) on such date, ratably based upon the
respective aggregate amounts of all such interest owing to the Administrative
Agent and the Lender Parties on such date;
(viii) eighth, to the payment of the principal amount of all of the
outstanding Advances and any reimbursement obligations that are due and payable
to the Administrative Agent and the Lender Parties on such date, ratably based
upon the respective aggregate amounts of all such principal and reimbursement
obligations owing to the Administrative Agent and the Lender Parties on such
date, and to deposit into the L/C Cash Collateral Account any contingent
reimbursement obligations in respect of outstanding Letters of Credit to the
extent required by Section 6.02; and
(ix) ninth, to the payment of all other Obligations of the Loan Parties
owing under or in respect of the Loan Documents that are due and payable to the
Administrative Agent and the other Lender Parties on such date, ratably based
upon the respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Lender Parties on such date.
45
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.11, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender Party and the Administrative
Agent, taxes that are imposed on its overall net income by the United States and
taxes that are imposed on its overall net income (and franchise or other similar
taxes imposed in lieu thereof) by the state or foreign jurisdiction under the
laws of which such Lender Party or the Administrative Agent, as the case may be,
is organized or any political subdivision thereof and, in the case of each
Lender Party, taxes that are imposed on its overall net income (and franchise or
other similar taxes imposed in lieu thereof) by the state or foreign
jurisdiction of such Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
the Notes being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender Party or the Administrative Agent, (i)
the sum payable by the Borrower shall be increased as may be necessary so that
after the Borrower and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or the Administrative Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make all such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property, intangible, mortgage recording or similar taxes,
charges or levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and the Administrative
Agent for and hold them harmless against the full amount of Taxes and Other
Taxes, and for the full amount of taxes of any kind imposed by any jurisdiction
on amounts payable under this Section 2.12, imposed on or paid by such Lender
Party or the Administrative Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party or the Administrative Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Administrative Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment or,
if such receipts are not obtainable, other evidence of such payments by the
Borrower reasonably satisfactory to the Administrative Agent. In the case of any
payment hereunder or under the Notes by or on behalf of the Borrower through an
account or branch outside the United States or by or on behalf of the Borrower
by a payor that is not a United States person, if the Borrower determines that
no Taxes are payable in respect thereof, the Borrower shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address, an
opinion of counsel acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of subsections (d) and (e) of this
Section 2.12, the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
46
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender Party, and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as requested
in writing by the Borrower (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and
the Borrower with two original Internal Revenue Service forms W8 ECI or W8 BEN,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender Party is exempt from or entitled to
a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender Party at the time such
Lender Party first becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.12 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W8 ECI or W8 BEN, that the applicable Lender Party
reasonably considers to be confidential, such Lender Party shall give notice
thereof to the Borrower and shall not be obligated to include in such form or
document such confidential information. Upon the request of the Borrower, any
Lender that is a United States person and is not an exempt recipient for U.S.
backup withholding purposes shall deliver to the Borrower two copies of Internal
Revenue Service form W 9 (or any successor form).
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
47
(g) Any Lender Party claiming any additional amounts payable pursuant to
this Section 2.12 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party.
(h) If any Lender Party or the Administrative Agent receives a refund of
Taxes or Other Taxes paid by the Borrower or for which the Borrower has
indemnified any Lender Party or the Administrative Agent, as the case may be,
pursuant to this Section 2.12, then such Lender Party or the Administrative
Agent, as applicable, shall pay such amount, net of any expenses incurred by
such Lender Party or the Administrative Agent, to the Borrower within 30 days of
the receipt of such Taxes or Other Taxes. Notwithstanding the foregoing, (i) the
Borrower shall not be entitled to review the tax records or financial
information of any Lender Party or the Administrative Agent and (ii) neither the
Administrative Agent nor any Lender Party shall have any obligation to pursue
(and no Loan Party shall have any right to assert) any refund of Taxes or Other
Taxes that may be paid by the Borrower.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations due and payable to all
Lender Parties hereunder and under the Notes at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. The
Borrower agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender Party were the direct creditor of
the Borrower in the amount of such interest or participating interest, as the
case may be.
48
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and issuances
of Letters of Credit shall be available (and the Borrower agrees that it shall
use such proceeds and Letters of Credit) solely for the acquisition and/or
development of Student Housing Properties and/or Development Properties, to make
capital expenditures, for working capital purposes and for other general
corporate purposes of the Parent Guarantor and its Subsidiaries.
SECTION 2.15. Evidence of Debt. (a) Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender Party resulting from each Advance
owing to such Lender Party from time to time, including the amounts of principal
and interest payable and paid to such Lender Party from time to time hereunder.
The Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Note, in substantially the form of Exhibit A hereto,
payable to the order of such Lender Party in a principal amount equal to the
Revolving Credit Commitment of such Lender Party. All references to Notes in the
Loan Documents shall mean Notes, if any, to the extent issued hereunder. By
delivery of this Agreement and the Notes, there shall not be deemed to have
occurred, and there has not otherwise occurred, any payment, satisfaction or
novation of the Debt evidenced by the Original Credit Agreement and the "Notes"
described in the Original Credit Agreement, which Debt is instead evidenced by
this Agreement and the Notes and is allocated among the Lender Parties as of the
date hereof in accordance with their respective Pro Rata Share of the
Commitments, and the Lender Parties shall as of the date hereof make such
adjustments to the outstanding Advances of such Lender Parties so that such
outstanding Advances are consistent with their respective Commitments.
(b) The Register maintained by the Administrative Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender Party, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender Party hereunder, and (iv) the
amount of any sum received by the Administrative Agent from the Borrower
hereunder and each Lender Party's share thereof.
49
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to subsection (b) above, and by each Lender Party in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender Party and, in the
case of such account or accounts, such Lender Party, under this Agreement,
absent manifest error; provided, however, that the failure of the Administrative
Agent or such Lender Party to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The Borrower may,
at any time, by written notice to the Administrative Agent, request an increase
in the aggregate amount of the Revolving Credit Commitments by not less than
$10,000,000 nor more than $110,000,000 in the aggregate (each such proposed
increase, a `Commitment Increase') to be effective as of a date that is within
24 months after the Closing Date (the `Increase Date') as specified in the
related notice to the Administrative Agent; provided, however, that (i) in no
event shall the aggregate amount of the Commitments at any time exceed
$225,000,000, (ii) in no event shall the Borrower submit more than two (2)
separate requests for a Commitment Increase hereunder, and (iii) on the date of
any request by the Borrower for a Commitment Increase and on the related
Increase Date, the applicable conditions set forth in Article III shall be
satisfied.
(b) The Administrative Agent shall promptly notify the Lenders of each
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Administrative Agent on or prior
to the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing
to increase the amount of their respective Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative Agent shall
notify the Borrower as to the amount, if any, by which the Lenders are willing
to participate in the requested Commitment Increase. If the aggregate amount by
which the Lenders are willing to participate in such requested Commitment
Increase on such Commitment Date is less than the requested Commitment Increase,
then the Borrower may extend offers to one or more Eligible Assignees to
participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of such Commitment Date; provided, however,
that the Commitment of each such Eligible Assignee shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
50
(d) On each Increase Date, each Eligible Assignee that accepts an offer to
participate in the requested Commitment Increase in accordance with Section
2.16(c) (an "Assuming Lender") shall become a Lender party to this Agreement as
of such Increase Date and the Commitment of each Increasing Lender for such
requested Commitment Increase shall be so increased by such amount (or by the
amount allocated to such Lender pursuant to the last sentence of Section
2.16(b)) as of such Increase Date; provided, however that the Administrative
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) an assumption agreement from each Assuming Lender, if any, in form
and substance satisfactory to the Borrower and the Administrative Agent (each an
"Assumption Agreement"), duly executed by such Assuming Lender, the
Administrative Agent and the Borrower; and
(ii) confirmation from each Increasing Lender of the increase in the
amount of its Commitment in a writing satisfactory to the Borrower and the
Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date.
(e) As a condition to the effectiveness of any increase in the aggregate
Commitments pursuant to this Section 2.16, the Borrower shall pay (i) to the
Administrative Agent such fees as required by the Fee Letter, and (ii) to each
Increasing Lender or Assuming Lender, as applicable, such fees as they may
require in connection therewith, which fees shall, when paid, be fully earned
and non-refundable under any circumstances.
SECTION 2.17. Replacement of Lenders Under Certain Circumstances. In the
event that any Lender (a) shall make a demand for payment of increased costs
pursuant to Section 2.10(a) or (b) shall make a demand for Conversion of all
Eurodollar Rate Advances to Base Rate Advances pursuant to Section 2.10(d), and
unless the circumstances giving rise to such demand are no longer in effect, the
Borrower may, if such Lender is not then an Issuing Bank and such Lender shall
fail to withdraw such demand within five Business Days after the Borrower's
request for such withdrawal, upon 30 days' prior written notice by the Borrower
to the Administrative Agent and such Lender, elect to cause such Lender to
assign its Advances and Commitments in full to an Eligible Assignee in
accordance with the provisions of Section 9.07(a), and such Lender hereby agrees
to assign its Advances and Commitments as provided above if an Eligible Assignee
shall have agreed to assume such Advances and Commitments; provided that, on the
date of such assignment, the Borrower shall pay (x) to such Lender (1) any
amounts payable to such Lender pursuant to Section 2.10 or otherwise pursuant to
this Agreement and (2) any amounts that would have been payable to such Lender
pursuant to Section 9.04(c) if the Borrower had prepaid all outstanding Advances
of such Lender on the date of such assignment and (y) to the Administrative
Agent, any processing and recordation fee payable to the Administrative Agent
pursuant to Section 9.07(a) in connection with such assignment.
51
SECTION 2.18. Extension of Termination Date. (a) Provided that no Default
or Event of Default shall have occurred and be continuing, the Borrower shall
have the option, to be exercised by giving written notice to the Administrative
Agent not more than ninety (90) days and not less than thirty (30) days prior to
the initial scheduled Termination Date (an "Extension Request"), subject to the
terms and conditions set forth in this Agreement, to extend the Termination Date
to August 17, 2010. The request by the Borrower for extension of the Termination
Date shall constitute a representation and warranty by the Borrower that all of
the conditions set forth in this Section shall have been satisfied on the date
of such request.
(b) The obligations of the Administrative Agent and the Lenders to extend
the Termination Date as provided in Section 2.18(a) shall be subject to the
satisfaction of the following conditions precedent on the then effective
Termination Date (without regard to such extension request):
(i) Payment of Extension Fee. The Borrower shall pay to the
Administrative Agent on or before the then effective Termination Date (without
regard to such extension request) for the account of the Lenders in accordance
with their respective Pro Rata Shares an extension fee equal to one-fifth of one
percent (0.20%) of the total Commitment, which fee shall, when paid, be fully
earned and non-refundable under any circumstances.
(ii) No Default. On the date the Extension Request is given and on the
Termination Date (as determined without regard to such extension) there shall
exist no Default or Event of Default.
(iii) Representations and Warranties. The representations and warranties
made by the Borrower, the Guarantors and their respective Subsidiaries in the
Loan Documents or otherwise made by or on behalf of such Persons 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 Termination Date (as determined without regard to such
extension) except for representations or warranties that expressly relate to an
earlier date.
(c) The Administrative Agent shall promptly notify each of the Lenders in
the event that the Termination Date is extended as provided in this Section
2.18.
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of any Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the Closing
Date the following, each dated the Closing Date (unless otherwise specified), in
form and substance satisfactory to the Administrative Agent (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender
Party:
52
(i) This Agreement, together with a Note payable to the order of each
Lender that has requested a Note prior to the Closing Date.
(ii) Copies of the Borrowing Base Property Qualification Documents for
each of the Borrowing Base Properties.
(iii) Certified copies of the resolutions of the Board of Directors,
board of managers, management committee, general partner or managing member (or
other similar body), as applicable, of each Loan Party approving the
transactions contemplated by the Loan Documents and each Loan Document to which
it is or is to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and consents,
if any, with respect to the transactions under the Loan Documents and each Loan
Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State (or equivalent
authority) of the jurisdiction of incorporation, organization or formation of
each Loan Party and 1772 Sweet Home Road, LLC, dated reasonably near the Closing
Date, certifying, if and to the extent such certification is generally available
for entities of the type of such Loan Party and 1772 Sweet Home Road, LLC, (A)
as to a true and correct copy of the charter, certificate of limited
partnership, certificate of formation or other comparable organizational
document of such Loan Party and 1772 Sweet Home Road, LLC, and of each amendment
thereto on file in such Secretary's office and (B) that (1) such amendments are
the only amendments to the charter, certificate of limited partnership,
certificate of formation or other comparable organizational document, as
applicable, of such Loan Party or 1772 Sweet Home Road, LLC, that are on file in
such Secretary's office and (2) such Loan Party or 1772 Sweet Home Road, LLC has
paid all franchise taxes to the date of such certificate and (C) that such Loan
Party or 1772 Sweet Home Road, LLC is duly incorporated, organized or formed and
in good standing or presently subsisting under the laws of the jurisdiction of
its incorporation, organization or formation.
(v) A copy of a certificate of the Secretary of State (or equivalent
authority) of each jurisdiction in which any Loan Party or 1772 Sweet Home Road,
LLC owns or leases property or in which the conduct of its business requires it
to qualify or be licensed as a foreign corporation, limited partnership or
limited liability company (except where the failure to so qualify or be licensed
would not be reasonably likely to have a Material Adverse Effect), dated
reasonably near (but prior to) the Closing Date, stating, with respect to each
such Loan Party or 1772 Sweet Home Road, LLC,, that such Loan Party or 1772
Sweet Home Road, LLC is duly qualified and in good standing as a foreign
corporation, limited partnership or limited liability company in such State and
has filed all annual reports required to be filed to the date of such
certificate.
(vi) A certificate of each Loan Party, signed on behalf of such Loan
Party by its President or a Vice President and its Secretary or any Assistant
Secretary (or those of its general partner or managing member or other
authorized representative, if applicable), dated the Closing Date, certifying as
to (A) a true and correct copy of the bylaws, operating agreement, partnership
agreement or other governing document of such Loan Party and 1772 Sweet Home
Road, LLC, as in effect on the date on which the resolutions referred to in
Section 3.01(a)(iii) were adopted and on the Closing Date, (or that there have
been no changes from those agreements delivered pursuant to the Original Credit
Agreement), (B) the due incorporation, organization or formation and good
standing or valid existence of such Loan Party and 1772 Sweet Home Road, LLC as
a corporation, limited liability company or general or limited partnership
organized under the laws of the jurisdiction of its incorporation, organization
or formation and the absence of any proceeding for the dissolution or
liquidation of such Loan Party and 1772 Sweet Home Road, LLC, (C) the truth of
the representations and warranties contained in the Loan Documents as though
made on and as of the Closing Date and (D) the absence of any event that has
occurred and is continuing, or that would result from the Initial Extension of
Credit, that constitutes a Default or an Event of Default.
53
(vii) A certificate of the Secretary or an Assistant Secretary (or other
Responsible Officer, if applicable) of each Loan Party certifying the names and
true signatures of the officers of such Loan Party authorized to sign each Loan
Document to which it is or is to be a party (either individually or as the
general partner or managing member of another Loan Party) and the other
documents to be delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding each
Loan Party and its Subsidiaries as the Lender Parties shall have requested,
including, without limitation, information as to possible contingent
liabilities, tax matters, environmental matters, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining agreements and
other arrangements with employees, Material Contracts and Tenancy Leases
(together with copies thereof if requested by the Administrative Agent), audited
annual financial statements for the year ending December 31, 2005, interim
financial statements dated the end of the most recent fiscal quarter for which
financial statements are available (or, in the event the Lender Parties' due
diligence review reveals material changes since such financial statements, as of
a later date within 45 days of the Closing Date).
(ix) Intentionally Omitted.
(x) An opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Loan
Parties, in substantially the form of Exhibit F-1 hereto and as to such other
matters as the Administrative Agent may reasonably request.
(xi) Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, New York counsel for the
Loan Parties, in substantially the form of Exhibit F-2 hereto, and as to such
other matters the Administrative Agent may reasonably request.
(xii) Intentionally Omitted.
(xiii) A Notice of Borrowing or Notice of Issuance, as applicable, and a
Borrowing Base Certificate relating to the Initial Extension of Credit.
(b) The Lender Parties shall be satisfied with the corporate and legal
structure and capitalization of each Loan Party and its Subsidiaries, including
the terms and conditions of the charter and bylaws, operating agreement,
partnership agreement or other governing document of each of them.
54
(c) The Loan Parties shall have no Debt, other than Surviving Debt, and all
Surviving Debt shall be on terms and conditions satisfactory to the Lender
Parties.
(d) Intentionally Omitted.
(e) Before and after giving effect to the transactions contemplated by the
Loan Documents, there shall have occurred (i) no Material Adverse Change since
June 30, 2006, and (ii) no material adverse change in the Initial Borrowing Base
Properties since the date of this Agreement.
(f) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect other than the matters
described on Schedule 4.01(f) hereto (the "Disclosed Litigation") or (ii)
purports to affect the legality, validity or enforceability of any Loan Document
or the consummation of the transactions contemplated thereby, and there shall
have been no adverse change in the status, or financial effect on any Loan Party
or any of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto.
(g) All governmental and third party consents and approvals necessary in
connection with the transactions contemplated by the Loan Documents shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Lender Parties) and shall remain in effect, and no law or regulation
shall be applicable in the reasonable judgment of the Lender Parties that
restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated by the Loan Documents.
(h) The Borrower shall have paid all fees that are due and payable pursuant
to the Fee Letter, all other accrued fees of the Administrative Agent and the
Lender Parties and all out-of-pocket expenses (including the reasonable fees and
expenses of counsel) of the Administrative Agent and the Arranger.
SECTION 3.02. Conditions Precedent to Each Borrowing, Issuance, Renewal and
Commitment Increase. The obligation of each Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to
Section 2.03(c) and a Swing Line Advance made by a Lender pursuant to Section
2.02(b)) on the occasion of each Borrowing (including the initial Borrowing),
the obligation of each Issuing Bank to issue a Letter of Credit (including the
initial issuance) or extend the expiration date of a Letter of Credit and the
right of the Borrower to request a Swing Line Borrowing or a Commitment Increase
pursuant to Section 2.16 shall be subject to the further conditions precedent
that on the date of such Borrowing, issuance, extension or increase (a) the
following statements shall be true and the Administrative Agent shall have
received, for the account of such Lender, the Swing Line Bank or such Issuing
Bank, a certificate signed on behalf of the Borrower by a duly authorized
officer of the Borrower, dated the date of such Borrowing, issuance. extension
or increase, stating that:
55
(i) the representations and warranties contained in each Loan Document
are true and correct on and as of such date, before and after giving effect to
(A) such Borrowing, issuance, extension or increase and (B) in the case of any
Borrowing, issuance or extension, the application of the proceeds therefrom, as
though made on and as of such date;
(ii) no Default has occurred and is continuing, or would result from (A)
such Borrowing, issuance, extension or increase or (B) in the case of any
Borrowing, issuance or extension, from the application of the proceeds
therefrom; and
(iii) for each Revolving Credit Advance or Swing Line Advance made by
the Swing Line Bank or issuance or extension of any Letter of Credit, (A) the
Aggregate Borrowing Base Amount equals or exceeds the sum of (1) the Facility
Exposure after giving effect to such Advance or issuance or extension,
respectively, plus (2) the amount of all other Unsecured Debt and (B) before and
after giving effect to such Advance, issuance or extension, the Parent Guarantor
shall be in compliance with the covenants contained in Section 5.04, together
with supporting information in form satisfactory to the Administrative Agent
showing the computations used in determining compliance with such covenants; and
(b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. Each Loan
Party represents and warrants as follows:
(a) Organization and Powers; Qualification and Good Standing. Each Loan
Party and each of its Subsidiaries and each general partner or managing member,
if any, of each Loan Party (i) is a corporation, limited liability company or
partnership duly incorporated, organized or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, organization
or formation, (ii) is duly qualified and in good standing as a foreign
corporation, limited liability company or partnership in each other jurisdiction
in which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed, except where the failure to so qualify
or be licensed would not be reasonably likely to have a Material Adverse Effect
and (iii) has all requisite corporate, limited liability company or partnership
power and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted. The
Parent Guarantor has, beginning with its taxable year ended December 31, 2004,
been organized and operated in conformity with the requirements for
qualification and taxation as a REIT under the Internal Revenue Code, and the
present and proposed method of operation of the Parent Guarantor and its
Subsidiaries will permit the Parent Guarantor to continue to meet the
requirements for qualification and taxation as a REIT under the Internal Revenue
Code. All of the outstanding Equity Interests in the Parent Guarantor have been
validly issued, are fully paid and non-assessable, all of the general partner
Equity Interests in the Borrower are owned by the Parent Guarantor, and all such
general partner Equity Interests are owned by the Parent Guarantor free and
clear of all Liens.
56
(b) Subsidiaries. Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its incorporation,
organization or formation, the percentage of each such class of its Equity
Interests owned (directly or indirectly) by such Loan Party on the date hereof
and the number of shares (or the equivalent thereof) covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights at the
date hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries has been validly issued, are fully paid and non-assessable and are
owned by such Loan Party or one or more of its Subsidiaries free and clear of
all Liens except Permitted Liens.
(c) Due Authorization; No Conflict. The execution and delivery by each Loan
Party of each Loan Document to which it is or is to be a party (either
individually or as the general partner or managing member of another Loan
Party), and the performance of its obligations thereunder, and the consummation
of the transactions contemplated by the Loan Documents, are within the
corporate, limited liability company or partnership powers of such Loan Party,
have been duly authorized by all necessary corporate, limited liability company
or partnership action, and do not (i) contravene the charter or bylaws,
operating agreement, partnership agreement or other governing document of such
Loan Party, (ii) violate any law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any material contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting any Loan Party, any of its Subsidiaries or any of their properties, or
(iv) result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of any Loan Party or any of its Subsidiaries.
No Loan Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which would be
reasonably likely to have a Material Adverse Effect.
(d) Governmental Consents. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of any Loan Document to
which it is or is to be a party (either individually or as the general partner
or managing member of another Loan Party) or for the consummation of the
transactions contemplated by the Loan Documents, or (ii) to the knowledge of any
Loan Party, the exercise by the Administrative Agent or any Lender Party of its
rights under the Loan Documents, except for the authorizations, approvals,
actions, notices and filings listed on Schedule 4.01(d) hereto, all of which
have been duly obtained, taken, given, or made and are in full force and effect.
57
(e) Binding Obligation. This Agreement has been, and each other Loan
Document when delivered hereunder will have been, duly executed and delivered by
each Loan Party that is a party thereto (either individually or as the general
partner or managing member of another Loan Party). This Agreement is, and each
other Loan Document when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party that is a party thereto, enforceable
against such Loan Party, general partner or managing member, as the case may be,
in accordance with its terms.
(f) Litigation. There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries or any general
partner or managing member (if any) of any Loan Party, including any
Environmental Action, pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect
the legality, validity or enforceability of any Loan Document and the
transactions contemplated by the Loan Documents, and there has been no adverse
change in the status, or financial effect on any Loan Party or any of its
Subsidiaries or any general partner or managing member (if any) of any Loan
Party, of the Disclosed Litigation from that described on Schedule 4.01(f)
hereto.
(g) Financial Condition. The consolidated balance sheet of the Parent
Guarantor and its Subsidiaries as at December 31, 2005 and the related
consolidated statement of income and consolidated statement of cash flows of the
Parent Guarantor and its Subsidiaries for the fiscal year then ended,
accompanied by an unqualified opinion of Ernst & Young LLP, independent public
accountants, the consolidated balance sheet of the Parent Guarantor and its
Subsidiaries as at June 30, 2006 and the related consolidated statement of
income and consolidated statement of cash flows of the Parent Guarantor and its
Subsidiaries for the six months then ended, duly certified by the Chief
Financial Officer of the Parent Guarantor, copies of which have been furnished
to each Lender Party, fairly present subject, in the case of said consolidated
balance sheet as at June 30, 2006, and said consolidated statements of income
and cash flows for the six months then ended, to year-end audit adjustments, the
consolidated financial condition of the Parent Guarantor and its Subsidiaries,
as at such dates and the consolidated results of operations of the Parent
Guarantor and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a consistent
basis, and since June 30, 2006, there has been no Material Adverse Change.
(h) Forecasts. The consolidated forecasted balance sheets, statements of
income and statements of cash flows of the Parent Guarantor and its Subsidiaries
delivered to the Lender Parties pursuant to Section 3.01(a)(viii) or 5.03 were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions were fair in light of the conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the Parent
Guarantor's best estimate of its future financial performance.
58
(i) Full Disclosure. No information, exhibit or report furnished by or on
behalf of any Loan Party to the Administrative Agent or any Lender Party in
connection with the negotiation and syndication of the Loan Documents or
pursuant to the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(j) Margin Regulations. No Loan Party is engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be used to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock.
(k) Governmental Regulation. Neither any Loan Party nor any of its
Subsidiaries is an "investment company", or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended. Without
limiting the generality of the foregoing, each Loan Party and each of its
Subsidiaries: (i) is primarily engaged, directly or through a wholly-owned
subsidiary or subsidiaries, in a business or businesses other than that of (A)
investing, reinvesting, owning, holding or trading in securities or (B) issuing
face-amount certificates of the installment type; (ii) is not engaged in, does
not propose to engage in and does not hold itself out as being engaged in the
business of (A) investing, reinvesting, owning, holding or trading in securities
or (B) issuing face-amount certificates of the installment type; (iii) does not
own or propose to acquire investment securities (as defined in the Investment
Company Act of 1940, as amended) having a value exceeding forty percent (40%) of
the value of such company's total assets (exclusive of government securities and
cash items) on an unconsolidated basis; (iv) has not in the past been engaged in
the business of issuing face-amount certificates of the installment type; and
(v) does not have any outstanding face-amount certificates of the installment
type. Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated by the
Loan Documents, will violate any provision of such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
(l) No Materially Adverse Agreements. Neither any Loan Party nor any of its
Subsidiaries is a party to any indenture, loan or credit agreement or any lease
or other agreement or instrument or subject to any charter, corporate,
partnership, membership or other governing restriction that would be reasonably
likely to have a Material Adverse Effect.
(m) [Intentionally Omitted].
(n) Surviving Debt. Set forth on Schedule 4.01(n) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the obligor,
the principal amount outstanding thereunder and the maturity date thereof.
(o) Existing Liens. Set forth on Schedule 4.01(o) hereto is a complete and
accurate list of all Liens on the property or assets of any Loan Party or any of
its Subsidiaries that secure Debt for Borrowed Money, showing as of the date
hereof the lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets of such Loan Party or such Subsidiary subject
thereto.
59
(p) Real Estate Assets. Set forth on Schedule 4.01(p) hereto is a complete
and accurate list of all Real Estate Assets owned and/or leased (as lessee) by
any Loan Party or any of its Subsidiaries as of the date hereof or, if
applicable, the date of the most recent supplement to such Schedule 4.01(p)
delivered pursuant to Section 5.03(j), showing as of such date the street
address, county or other relevant jurisdiction, state, and record owner thereof.
Each Loan Party or such Subsidiary has good, marketable and insurable fee simple
title to such Real Estate Assets, free and clear of all Liens, other than Liens
created by the Loan Documents and Permitted Liens.
(q) [Intentionally Omitted].
(r) Environmental Matters. (i) Except as otherwise set forth on Part I of
Schedule 4.01(r) hereto, the operations and properties of each Loan Party and
each of its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with such
Environmental Laws and Environmental Permits will have no material ongoing
obligations or costs, and to the knowledge of each Loan Party or any of its
Subsidiaries, no circumstances exist that could be reasonably likely to (A) form
the basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material Adverse
Effect or (B) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law that
could have a Material Adverse Effect.
(ii) Except as otherwise set forth on Part II of Schedule 4.01(r)
hereto, none of the properties currently or to the knowledge of each Loan Party
and any of its Subsidiaries, formerly owned or operated by any Loan Party or any
of its Subsidiaries is listed or to the knowledge of each Loan Party and any of
its Subsidiaries, proposed for listing on the NPL or on the CERCLIS or any
analogous foreign, state or local list; any and all asbestos or
asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries is in good condition and is arranged in
accordance with Environmental Laws; Hazardous Materials have not been stored or
otherwise located, released, discharged or disposed of on any property currently
or formerly owned or operated by any Loan Party or any of its Subsidiaries in a
manner that could reasonably be expected to result in a material liability, and
no part of such property is presently contaminated by Hazardous Materials (in
each case excluding, with respect to any property formerly owned or operated by
any Loan Party or any of its Subsidiaries, any such storage, location, release,
discharge, disposal or contamination occurring after such Loan Party or
Subsidiary ceased to own or operate such property).
(iii) Except as otherwise set forth on Part III of Schedule 4.01(r)
hereto, neither any Loan Party nor any of its Subsidiaries is undertaking, and
has not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to result
in material liability to any Loan Party or any of its Subsidiaries.
60
(s) Compliance With Laws. Each Loan Party and each Subsidiary is in
compliance with the requirements of all Laws (including, without limitation, the
Securities Act and the Securities Exchange Act, and the applicable rules and
regulations thereunder, state securities law and "Blue Sky" laws) applicable to
it and its business, where the failure to so comply could reasonably be expected
to have a Material Adverse Effect.
(t) Force Majeure. Neither the business nor the properties of any Loan
Party or any of its Subsidiaries are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that could be reasonably likely to have a Material Adverse
Effect.
(u) Loan Parties' Credit Decisions. Each Loan Party has, independently and
without reliance upon the Administrative Agent or any other Lender Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement (and in the case
of the Guarantors, to give the guaranty under this Agreement) and each other
Loan Document to which it is or is to be a party, and each Loan Party has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing basis
will be completely familiar with, the business, condition (financial or
otherwise), operations, performance, properties and prospects of such other Loan
Party.
(v) Solvency. Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(w) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. No Loan Party has made any extension of credit to any
of its directors or executive officers in contravention of any applicable
restrictions set forth in Section 402(a) of ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
(x) ERISA Matters. (i) Set forth on Schedule 4.01(x) hereto is a complete
and accurate list of all Plans and Welfare Plans.
(ii) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan that has resulted in or is reasonably expected to result in
a material liability of any Loan Party or any ERISA Affiliate.
(iii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed with
the Internal Revenue Service and furnished to the Lender Parties, is complete
and accurate and fairly presents the funding status of such Plan, and since the
date of such Schedule B there has been no material adverse change in such
funding status.
61
(iv) Neither any Loan Party nor any ERISA Affiliate has contributed to
or been required to contribute to any Multiemployer Plan within the past six
years prior to the date hereof.
(v) Neither any Loan Party nor any ERISA Affiliate has been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and no such Multiemployer Plan is reasonably expected to be in reorganization or
to be terminated, within the meaning of Title IV of ERISA.
(y) Borrowing Base Properties.
(i) The Loan Parties, or with respect to the Student Housing Property
owned by 1772 Sweet Home Road, LLC, 1772 Sweet Home Road, LLC are the legal and
beneficial owners of the Borrowing Base Properties free and clear of any Lien,
except for Permitted Liens described in clauses (a), (b), (d) and (e) of the
definition of "Permitted Liens". Each of the Borrowing Base Properties satisfies
the requirements in this Agreement to being a Borrowing Base Property. To each
Loan Party's knowledge, except as set forth on Schedule 4.01(y) hereto, there
are no proceedings in condemnation or eminent domain affecting any of the
Borrowing Base Properties and, to the knowledge of each Loan Party, none is
threatened. No Person has any option or other right to purchase all or any
portion of any of the Borrowing Base Properties or any interest therein.
(ii) To each Loan Party's knowledge, the Borrowing Base Properties and
the use thereof comply in all material respects with all applicable zoning,
subdivision and land use laws, regulations and ordinances, all applicable
health, fire, building codes, parking laws and all other laws, statutes, codes,
ordinances, rules and regulations applicable to the Borrowing Base Properties,
or any of them, including without limitation the Americans with Disabilities
Act. To each Loan Party's knowledge, all material permits, licenses and
certificates for the lawful use, occupancy and operation of each component of
each of the Borrowing Base Properties in the manner in which it is currently
being used, occupied and operated, including, but not limited to liquor licenses
and certificates of occupancy, or the equivalent, have been obtained and are
current and in full force and effect. To each Loan Party's knowledge, no legal
proceedings are pending or threatened with respect to the zoning of any
Borrowing Base Property. To each Loan Party's knowledge, neither the zoning nor
any other right to construct, use or operate any Borrowing Base Property is in
any way dependent upon or related to any real estate other than such Borrowing
Base Property in any way that has had or is reasonably likely to give rise to a
materially adverse effect as to the value, use of or ability to sell or finance
such Borrowing Base Property. No tract map, parcel map, condominium plan,
condominium declaration, or plat of subdivision will be recorded by any Loan
Party with respect to any Borrowing Base Property without the Administrative
Agent's prior written consent, which consent shall not be unreasonably withheld,
delayed or conditioned.
(iii) [Intentionally omitted.]
(iv) [Intentionally omitted.]
62
(v) To each Loan Party's knowledge, all improvements on any Borrowing
Base Property, including without limitation the roof and all structural
components, plumbing systems, HVAC systems, fire protection systems, electrical
systems, equipment, elevators, exterior doors, parking facilities, sidewalks and
landscaping, are in good condition and repair. The Loan Parties are not aware of
any latent or patent structural or other material defect or deficiency in any of
the Borrowing Base Properties and, to the Loan Parties' knowledge, city water
supply, storm and sanitary sewers, and electrical, gas (if applicable) and
telephone facilities are available to each of the Borrowing Base Properties
within the boundary lines of each of the Borrowing Base Properties (except in
any way that has not had and is reasonably likely to not give rise to a
materially adverse effect as to the value, use of or ability to sell or finance
such Borrowing Base Property), are fully connected to the improvements and are
fully operational, are sufficient to meet the reasonable needs of each of the
Borrowing Base Properties as now used or presently contemplated to be used, and
no other utility facilities are necessary to meet the reasonable needs of any of
the Borrowing Base Properties as now used or presently contemplated. Except in
any way that has not had and is reasonably likely to not give rise to a
materially adverse effect as to the value, use of or ability to sell or finance
such Borrowing Base Property, to the Loan Parties' knowledge no part of any of
the Borrowing Base Properties is within a flood plain and none of the
improvements thereon create encroachments over, across or upon any of the
Borrowing Base Properties' boundary lines, rights of way or easements, and no
building or other improvements on adjoining land create such an encroachment
which could reasonably be expected to have a Material Adverse Effect. All public
roads and streets necessary for service of and access to each of the Borrowing
Base Properties for the current and contemplated uses thereof have been
completed and are serviceable and are physically and legally open for use by the
public. To the Loan Parties' knowledge after due inquiry, any septic system
located at any of the Borrowing Base Properties is in good and safe condition
and repair and in compliance with all applicable law.
(vi) Each of the Borrowing Base Properties is comprised of one (1) or
more parcels which constitute separate tax lots. No part of any of the Borrowing
Base Properties is included or assessed under or as part of another tax lot or
parcel, and no part of any other property is included or assessed under or as
part of the tax lots or parcels comprising any of the Borrowing Base Properties.
(z) Ground Lease (Temple). (i) The Ground Lease (Temple) contains the
entire agreement of the Ground Lessor (Temple) and the applicable Loan Party
pertaining to the Ground Leased Property (Temple) covered thereby. The Loan
Parties have no estate, right, title or interest in or to the Ground Leased
Property (Temple) except under and pursuant to the Ground Lease (Temple). The
Loan Parties have delivered a true and correct copy of the Ground Lease (Temple)
to the Administrative Agent and the Ground Lease (Temple) has not been modified,
amended or assigned.
(ii) Other than with respect to the Title Uncertainty as defined in that
certain Amended and Restated Indemnity Agreement, dated October 20, 2003, by and
between ACT-Village at Temple, LLC and Temple University of the Commonwealth
System of Higher Education, a copy of which has been delivered to the
Administrative Agent, to the knowledge of the Loan Parties, the Ground Lessor
(Temple) is the exclusive fee simple owner of its Ground Leased Property
(Temple), subject only to the Ground Lease (Temple) and Liens described in
clauses (a), (b), (d), and (e) of the definition of Permitted Liens, and the
Ground Lessor (Temple) is the sole owner of the lessor's interest in the Ground
Lease (Temple).
63
(iii) There are no rights to terminate the Ground Lease (Temple) other
than the Ground Lessor (Temple)'s right to terminate by reason of default,
casualty, condemnation or other reasons, in each case as expressly set forth in
the Ground Lease (Temple).
(iv) The Ground Lease (Temple) is in full force and effect and, to the
Loan Parties' knowledge, no breach or default or event that with the giving of
notice or passage of time would constitute a breach or default under the Ground
Lease (Temple) (a "Ground Lease (Temple) Default") exists or has occurred on the
part of the Loan Parties or on the part of the Ground Lessor (Temple) under the
Ground Lease (Temple). All base rent and additional rent due and payable under
the Ground Lease (Temple) has been paid through the date hereof and the Loan
Parties are not required to pay any deferred or accrued rent after the date
hereof under the Ground Lease (Temple). The Loan Parties have not received any
written notice that a Ground Lease Default (Temple) has occurred or exists, or
that the Ground Lessor (Temple) or any third party alleges the same to have
occurred or exist.
(v) ACT-Village at Temple LLC is the exclusive owner of the Lessee's
interest under and pursuant to the Ground Lease (Temple) and has not assigned,
transferred or encumbered its interest in, to, or under the Ground Lease
(Temple).
(aa) No Prohibited Persons. Neither any Loan Party nor any of their
respective officers, directors, partners, members, Affiliates or, to the
knowledge of the Loan Parties, shareholders is an entity or person: (i) that is
listed in the Annex to, or is otherwise subject to the provisions of Executive
Order 13224 issued on September 24, 2001 ("EO13224"); (ii) whose name appears on
the United States Treasury Department's Office of Foreign Assets Control
("OFAC") most current list of "Specifically Designated National and Blocked
Persons" (which list may be published from time to time in various mediums
including, but not limited to, the OFAC website,
http:▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇.▇▇▇); (iii) who commits, threatens to commit or
supports "terrorism", as that term is defined in EO 13224; or (iv) who is
otherwise affiliated with any entity or person listed above (any and all parties
or persons described in clauses (i) through (iv) above are herein referred to as
a "Prohibited Person").
(bb) On-Campus Participating Entities. Set forth on Schedule 4.01(bb)
hereto is a complete and accurate list of all Debt of the On-Campus
Participating Entities. None of the Consolidated Entities (i) is directly or
indirectly liable, contingently or otherwise, with respect to any of such Debt,
except as provided in the ACCSI Guaranty and the Cullen Oaks Phase II Guaranty,
or (ii) has any obligation, direct or indirect, contingent or otherwise, to make
any additional Investment in any of the On-Campus Participating Entities.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Loan Party will:
64
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970; provided, however that the
failure to comply with the provisions of this Section 5.01(a) shall not
constitute a default hereunder so long as such non-compliance is the subject of
a Good Faith Contest or would not reasonably be expected to have a Material
Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however that neither the Loan Parties
nor any of their Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained,
unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws, in each case to the extent the failure
to remove and/or clean up the same would be reasonably likely to result in a
material liability to any Loan Party or any of its Subsidiaries; provided,
however that neither the Loan Parties nor any of their Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries
to maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which such Loan Party or such Subsidiaries operate.
(e) Preservation of Partnership or Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
existence (corporate or otherwise), rights (charter and statutory), permits,
licenses, approvals and franchises except, in the case of Subsidiaries of the
Borrower only, if in the reasonable business judgment of such Subsidiary it is
in its best economic interest not to preserve and maintain such rights or
franchises and such failure to preserve and maintain such rights or franchises
is not reasonably likely to result in a Material Adverse Effect (it being
understood that the foregoing shall not prohibit, or be violated as a result of,
any transactions by or involving any Loan Party or Subsidiary thereof otherwise
permitted under Section 5.02(d) or (e) below).
65
(f) Visitation Rights. At any reasonable time and from time to time, permit
any of the Administrative Agent or Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, any Loan Party and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
any Loan Party and any of its Subsidiaries with any of their general partners,
managing members, officers or directors and with their independent certified
public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of such Loan
Party and each such Subsidiary in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted and will from time to time make or
cause to be made all appropriate repairs, renewals and replacement thereof
except where failure to do so would not have a Material Adverse Effect.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates (other than (i) in the case of any Loan
Party, any other Loan Party, and (ii) in the case of any other Subsidiary of the
Parent Guarantor, any Consolidated Entity) on terms that are fair and reasonable
and no less favorable to such Loan Party or Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate; provided
that neither (A) the charging of a guarantee fee or similar charge, in the
amount of up to 2% of the guaranteed obligation, by one Subsidiary of the Parent
Guarantor to another such Subsidiary as compensation for providing a guarantee
of an obligation of such other Subsidiary nor (B) the charging by ACCSI of fees
for services rendered to any other Subsidiary of the Parent Guarantor in the
amount of up to 150% of the cost of providing such services nor (C) the
incurrence by any Subsidiary of the Parent Guarantor of obligations under a
Customary Carve-Out Agreement relating to Non-Recourse Debt of another such
Subsidiary shall constitute a breach of this Section 5.02(i).
(j) [Intentionally omitted.]
(k) Further Assurances. (i) Promptly upon request by Administrative Agent,
or any Lender Party through the Administrative Agent, correct, and cause each of
its Subsidiaries promptly to correct, any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or
recordation thereof.
(ii) Promptly upon request by Administrative Agent, or any Lender Party
through the Administrative Agent, do, execute, acknowledge and deliver any and
all such further acts, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as Administrative Agent, or any
Lender Party through the Administrative Agent, may reasonably require from time
to time in order to carry out more effectively the purposes of the Loan
Documents, and cause each of its Subsidiaries to do so.
66
(l) Performance of Material Contracts. Perform and observe all the terms
and provisions of each Material Contract to be performed or observed by it,
maintain each such Material Contract in full force and effect (including,
without limitation, not allowing any lease which constitutes a Material Contract
to lapse or be terminated or any rights to renew such lease to be forfeited or
cancelled), enforce each such Material Contract in accordance with its terms,
take all such action to such end as may be from time to time requested by the
Administrative Agent (including, without limitation, notifying the
Administrative Agent of any default by any party with respect to any lease which
constitutes a Material Contract and cooperating with the Administrative Agent in
all respects to cure any such default) and, upon request of the Administrative
Agent, make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or any of
its Subsidiaries is entitled to make under such Material Contract, and cause
each of its Subsidiaries to do so.
(m) Maintenance of REIT Status. In the case of the Parent Guarantor, at all
times, conduct its affairs and the affairs of its Subsidiaries in a manner so as
to qualify as a REIT and elect to be treated as a REIT.
(n) NYSE Listing. In the case of the Parent Guarantor, at all times (i)
cause its common shares to be duly listed on the New York Stock Exchange and
(ii) file all reports required to be filed by it in connection therewith in a
timely manner, after giving effect to any extensions allowed by the New York
Stock Exchange or the Securities and Exchange Commission.
(o) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. Comply at all times with all applicable provisions of
Section 402(a) of ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, no Loan Party will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or file
or suffer to exist, or permit any of its Subsidiaries to sign or file or suffer
to exist, under the Uniform Commercial Code of any jurisdiction, a financing
statement that names such Loan Party or any of its Subsidiaries as debtor, or
sign or suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder to file
such financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, except, in the case of
the Loan Parties (other than the Parent Guarantor) and their respective
Subsidiaries:
67
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens described on Schedule 4.01(o) hereto;
(iv) Liens arising in connection with Capitalized Leases permitted under
Section 5.02(b)(ii)(B), provided that no such Lien shall extend to or cover any
Borrowing Base Asset or assets other than the assets subject to such Capitalized
Leases;
(v) Liens on property of a Person existing at the time such Person is
merged into or consolidated with any Loan Party or any Subsidiary of any Loan
Party or becomes a Subsidiary of any Loan Party, provided that such Liens were
not created in contemplation of such merger, consolidation or acquisition and do
not extend to any assets other than those of the Person so merged into or
consolidated with such Loan Party or such Subsidiary or acquired by such Loan
Party or such Subsidiary;
(vi) other Liens securing Non-Recourse Debt permitted under Section
5.02(b)(ii)(E) or Secured Recourse Debt permitted under Section 5.02(b)(ii)(F),
provided that no such Lien shall extend to or cover any Borrowing Base Asset;
(vii) the replacement, extension or renewal of any Lien permitted by
clause (iii) above upon or in the same property theretofore subject thereto or
the replacement, extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured thereby; and
(viii) Liens securing the Cullen Oaks Phase II Loan and encumbering only
the Student Housing Properties located on the premises covered by the U of H
ground lease.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of any Loan Party or any Subsidiary of a Loan Party,
Debt owed to any other Loan Party or any wholly-owned Subsidiary of any Loan
Party, provided that, in each case, such Debt (y) shall be on terms acceptable
to the Administrative Agent and (z) shall be evidenced by promissory notes in
form and substance satisfactory to the Administrative Agent, which promissory
notes shall (unless payable to the Borrower) by their terms be subordinated to
the Obligations of the Loan Parties under the Loan Documents;
(ii) in the case of each Loan Party (other than the Parent Guarantor)
and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) (1) Capitalized Leases not to exceed in the aggregate $5,000,000
at any time outstanding, and (2) in the case of Capitalized Leases to which any
Subsidiary of a Loan Party is a party, Debt of such Loan Party of the type
described in clause (i) of the definition of "Debt" guaranteeing the Obligations
of such Subsidiary under such Capitalized Leases,
68
(C) the Surviving Debt described on Schedule 4.01(o) hereto and any
Refinancing Debt that extends, refunds or refinances such Surviving Debt,
(D) Debt in respect of Hedge Agreements entered into by the Borrower
and designed to hedge against fluctuations in interest rates incurred in the
ordinary course of business and consistent with prudent business practice,
(E) Non-Recourse Debt the incurrence of which would not result in a
Default under Section 5.04 or any other provision of this Agreement, and the
obligations under any Customary Carve-Out Agreements related thereto,
(F) Secured Recourse Debt the incurrence of which would not result in
a Default under Section 5.04 or any other provision of this Agreement, provided
that each individual obligation included within Secured Recourse Debt shall not
exceed 80% of the value of the collateral securing such Secured Recourse Debt as
reasonably determined by Borrower and approved by Administrative Agent,
(G) Unsecured Debt the incurrence of which would not result in a
Default under Section 5.04 or any other provision of this Agreement, and
(H) Qualifying Trust Preferred Obligations;
(iii) in the case of the Parent Guarantor, Debt under the Loan
Documents;
(iv) endorsements of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business;
(v) in the case of American Campus (U of H), Ltd., the Cullen Oaks Phase
II Loan; and
(vi) in the case of ACCSI, the Cullen Oaks Phase II Guaranty;
provided that, notwithstanding anything herein to the contrary, no Loan Party
shall, nor shall it permit any of its Subsidiaries (including without limitation
the On-Campus Participating Entities) to, create, incur or assume any Debt
relating to the On-Campus Participating Entities or the On-Campus Participating
Properties after the date hereof other than the Cullen Oaks Phase II Loan and
the Cullen Oaks Phase II Guaranty.
(c) Change in Nature of Business. Make, or permit any of its Subsidiaries
to make, any material change in the nature of its business as carried on at the
date hereof; or engage in, or permit any of its Subsidiaries to engage in, any
business other than ownership, development and management of Student Housing
Properties consistent in quality with the Borrowing Base Properties, and other
business activities incidental thereto.
69
(d) Mergers, Etc. Merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit any of its Subsidiaries to do so;
provided, however that (i) any Subsidiary of a Loan Party may merge or
consolidate with or into, or dispose of assets to, any other Subsidiary of such
Loan Party (provided that if one or more of such Subsidiaries is also a Loan
Party, any such Loan Party shall be the surviving entity) or any other Loan
Party (provided that such Loan Party or, in the case of any Loan Party other
than the Borrower, another Loan Party shall be the surviving entity), and (ii)
any Loan Party or any other Subsidiary of a Loan Party may merge with any other
Person so long as such Loan Party or such Subsidiary, as the case may be, is the
surviving entity, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would result
therefrom. Notwithstanding any other provision of this Agreement, (y) any
Subsidiary of a Loan Party (other than the Borrower) may liquidate or dissolve
if the Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and the assets or proceeds from the
liquidation or dissolution of such Subsidiary are transferred to the Borrower or
another Loan Party, provided that (A) no Default or Event of Default shall have
occurred and be continuing at the time of such proposed transaction and (B) no
Default or Event of Default would result therefrom, and (z) any Loan Party or
Subsidiary of a Loan Party shall be permitted to effect any Transfer of assets
through the sale of Equity Interests in the Subsidiary of such Loan Party that
owns such assets so long as Section 5.02(e) would otherwise permit the Transfer
of all assets owned by such Subsidiary at the time of such sale of Equity
Interests.
(e) Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell,
lease, transfer or otherwise dispose of, or grant any option or other right to
purchase, lease or otherwise acquire, any of its assets and (ii) in the case of
the Loan Parties (other than the Parent Guarantor), sell, lease (other than
enter into Tenancy Leases), transfer or otherwise dispose of, or grant any
option or other right to purchase, lease (other than any option or other right
to enter into Tenancy Leases) or otherwise acquire, or permit any of its
Subsidiaries to sell, lease, transfer or otherwise dispose of, or grant any
option or other right to purchase, lease or otherwise acquire (each action
described in clause (ii) of this subsection (e) being a "Transfer"), any asset
or assets (or any Equity Interests in connection therewith) other than (A) the
Transfer of any asset or assets that are not Borrowing Base Properties from any
Loan Party to another Loan Party or from a Subsidiary of a Loan Party to another
Subsidiary of such Loan Party or any other Loan Party or (B) the Transfer of any
asset or assets during any Fiscal Year of which the aggregate Capitalized Value
(or, in the case of any Real Estate Asset owned or in operation by any
Consolidated Entity for less than four full fiscal quarters as of the applicable
date of determination, the undepreciated book value), when added to the
Capitalized Values (or undepreciated book values, if applicable) of all other
assets that had been the subject of any previous Transfer or Transfers during
such Fiscal Year (as determined at the time of each such Transfer), is less than
20% of Consolidated Total Asset Value as of the beginning of such Fiscal Year;
provided that (1) no Transfer of any Borrowing Base Property or of any Equity
Interests in any Loan Party other than the Parent Guarantor shall be permitted
without the prior written consent of the Required Lenders and (2) in the case of
any Transfer described in clause (B) above which individually or in a series of
related transactions is in excess of 10% of Consolidated Total Asset Value as of
the beginning of such Fiscal Year, the Loan Parties are in compliance with the
covenants contained in Section 5.04 (both before and after giving effect to such
Transfer), as evidenced by a certificate of the Chief Financial Officer (or such
person performing similar functions) of the Borrower delivered to the
Administrative Agent prior to such Transfer demonstrating such compliance and
that the Transfer does not otherwise cause or result in a Default or Event of
Default.
70
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by the Loan Parties and their Subsidiaries in their
Subsidiaries outstanding on the date hereof and additional Investments in
Subsidiaries of the Loan Parties and, in the case of the Loan Parties (other
than the Parent Guarantor) and their respective Subsidiaries, Investments in
assets (including by asset or Equity Interest acquisitions), in each case
subject, where applicable, to the limitations set forth in Section 5.02(f)(v);
(ii) Investments in Cash Equivalents;
(iii) Investments consisting of intercompany Debt permitted under
Section 5.02(b)(i);
(iv) Investments consisting of advances to officers and employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business;
(v) Investments consisting of the following items so long as (y) the
aggregate amount outstanding, without duplication, of all Investments described
in this clause (v) does not exceed, at any time, 30% of Consolidated Total Asset
Value at such time, and (z) the aggregate amount of each of the following items
of Investments does not exceed the specified percentage of Consolidated Total
Asset Value set forth below:
(A) unimproved Real Estate Assets not constituting Development
Properties, so long as the aggregate amount of such Investments, calculated on
the basis of cost, does not at any time exceed 5% of Consolidated Total Asset
Value at such time,
(B) Development Properties, so long as the aggregate amount of such
Investments, calculated on the basis of actual cost, does not at any time exceed
25% of Consolidated Total Asset Value at such time, and
(C) Investments in Unconsolidated Entities so long as the aggregate
amount of such Investments outstanding does not at any time exceed 10% of
Consolidated Total Asset Value at any time; and
(vi) Investments by the Borrower in Hedge Agreements permitted under
Section 5.02(b)(ii)(D).
provided that, notwithstanding anything herein to the contrary, (A) no Loan
Party shall make, nor shall it permit any of its Subsidiaries (including without
limitation the On-Campus Participating Entities) to make, any Investment in the
On-Campus Participating Entities or the On-Campus Participating Properties after
the date hereof to the extent the aggregate amount of all such Investments made
after the date hereof would exceed $1,000,000, and (B) no Loan Party shall
permit any of the On-Campus Participating Entities to make or hold any
Investment in an Unconsolidated Entity, and (C) no Loan Party shall make, nor
shall it permit any of its Subsidiaries (including, without limitation the
On-Campus Participating Entities) to make, without the prior written approval of
the Required Lenders, any Investment after the date hereof in any Person which
is not an On-Campus Participating Entity as of the Closing Date which engages in
the development or ownership of a Student Housing Property where it is intended
that such Loan Party shall receive from such Student Housing Property a share of
excess cash flow with a college, university or other institution of higher
learning.
71
(g) Restricted Payments. In the case of the Parent Guarantor and the
Borrower only, declare or pay any dividends, purchase, redeem, retire, defease
or otherwise acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners or members (or the
equivalent Persons thereof) as such, make any distribution of assets, Equity
Interests, obligations or securities to its stockholders, partners or members
(or the equivalent Persons thereof) as such; provided, however that the Parent
Guarantor and the Borrower may declare and pay dividends or make other
distributions solely in Cash or shares of their respective common stock so long
as, in the case of any such Cash dividends or distributions, (i) no Default or
Event of Default shall have occurred and be continuing at the time of
declaration or payment thereof and the aggregate amount of such Cash dividends
or distributions, together with the aggregate amount of Cash dividends or
distributions made during the applicable period pursuant to the immediately
following clause (ii), do not exceed during any four consecutive fiscal quarters
of the Parent Guarantor 100% of Funds From Operations for such four fiscal
quarter period, (ii) no Default or Event of Default of the type described in
Section 6.01(a) or (f) shall have occurred and be continuing at the time of
declaration or payment thereof and such Cash dividends or distributions are
required to be made in order for the Parent Guarantor to comply with Section
5.01(m), or (iii) such Cash dividends or distributions are made by the Borrower
to the Parent Guarantor to enable it to pay, and the Parent Guarantor uses the
proceeds of such dividends or distributions to pay, costs and expenses incurred
by the Parent Guarantor in the ordinary course of conducting its business in the
manner permitted under Section 5.02(m).
(h) Amendments of Constitutive Documents. Amend, or permit any of its
Subsidiaries to amend, in each case in any material respect, its limited
partnership agreement, certificate of incorporation or bylaws or other
constitutive documents, provided that any amendment to any such constitutive
document that would be adverse to any of the Administrative Agent or the Lender
Parties shall be deemed "material" for purposes of this Section.
(i) Accounting Changes. Make or permit, or permit any of its Subsidiaries
to make or permit, any change in (i) accounting policies or reporting practices,
except as required or permitted by generally accepted accounting principles, or
(ii) Fiscal Year.
(j) Payment Restrictions Affecting Subsidiaries. Directly or indirectly,
enter into or suffer to exist, or permit any of its Subsidiaries to enter into
or suffer to exist, any agreement or arrangement limiting the ability of any of
its Subsidiaries to declare or pay dividends or other distributions in respect
of its Equity Interests or repay or prepay any Debt owed to, make loans or
advances to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting dividends,
loans, asset transfers or investments, a financial covenant or otherwise),
except (i) the Loan Documents, (ii) any agreement or instrument evidencing
Surviving Debt, (iii) any agreement or instrument evidencing any Refinancing
Debt that extends, refunds or refinances any Surviving Debt, so long as the
limitations contained in such Refinancing Debt are no more restrictive than
those contained in the Surviving Debt which is refinanced thereby, (iv) any
agreement evidencing any Non-Recourse Debt permitted under this Agreement so
long as the limitations contained therein do not apply to any Loan Party, (v)
any agreement evidencing any Secured Debt permitted under this Agreement so long
as the limitations contained therein do not apply to any Loan Party (except
there may be limitations with respect to Borrower and Parent Guarantor so long
as they are no more restrictive than the limitations contained in this
Agreement), and(vi) any agreement in effect at the time such Subsidiary becomes
a Subsidiary of the Borrower so long as such agreement was not entered into
solely in contemplation of such Person becoming a Subsidiary of the Borrower.
72
(k) Amendment, Etc. of Material Contracts. Cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend
or otherwise modify any Material Contract or give any consent, waiver or
approval thereunder, waive any default under or breach of any Material Contract,
agree in any manner to any other amendment, modification or change of any term
or condition of any Material Contract or take any other action in connection
with any Material Contract that would impair the value of the interest or rights
of any Loan Party thereunder or that would impair the interest or rights of the
Administrative Agent or any Lender Party, or permit any of its Subsidiaries to
do any of the foregoing, in each case in a manner that could reasonably be
expected to have a Material Adverse Effect, in each case taking into account the
effect of any agreements that supplement or serve to substitute for, in whole or
in part, such Material Contract.
(l) Negative Pledge. Enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or
assets (including, without limitation, any Borrowing Base Properties), except
(i) pursuant to the Loan Documents or (ii) with respect to any property or
assets other than Borrowing Base Properties in connection with (A) any Surviving
Debt and any Refinancing Debt extending, refunding or refinancing such Surviving
Debt, so long as the prohibitions or conditions contained in such Refinancing
Debt are no more restrictive than the corresponding provisions contained in the
Debt which is extended, refunded or refinanced thereby, (B) any Non-Recourse
Debt permitted by Section 5.02(b)(ii)(E) solely to the extent that (1) the
Person incurring such Non-Recourse Debt has no Subsidiaries and (2) the
agreements or instruments governing such Non-Recourse Debt prohibit Liens on the
property of the Person incurring such Non-Recourse Debt and the Equity Interests
in such Person, (C) any Secured Recourse Debt permitted by Section
5.02(b)(ii)(F) solely to the extent that the agreements or instruments governing
such Secured Recourse Debt prohibit Liens on the property securing such Debt,
and in connection with any mezzanine financing Liens on any underlying real
estate relating thereto (other than any Borrowing Base Asset or interest
therein), (D) any Capitalized Lease permitted by Section 5.02(b)(ii)(B) solely
to the extent that such Capitalized Lease prohibits a Lien on the property
subject thereto, or (E) any Debt outstanding on the date any Subsidiary of the
Borrower becomes such a Subsidiary (so long as such agreement was not entered
into solely in contemplation of such Subsidiary becoming a Subsidiary of the
Borrower).
73
(m) Parent Guarantor as Holding Company. In the case of the Parent
Guarantor, not enter into or conduct any business, or engage in any activity
(including, without limitation, any action or transaction that is required or
restricted with respect to the Borrower and its Subsidiaries under Sections 5.01
and 5.02 without regard to any of the enumerated exceptions to such covenants),
other than (i) the holding of the Equity Interests of the Borrower; (ii) the
performance of its duties as general partner of the Borrower; (iii) the
performance of its Obligations (subject to the limitations set forth in the Loan
Documents) under each Loan Document to which it is a party; (iv) the making of
equity Investments in the Borrower; provided that each such Investment shall be
on terms acceptable to the Administrative Agent; (v) engaging in any activity
necessary to continue to qualify as a REIT and (vi) activities incidental to
each of the foregoing.
(n) Multiemployer Plans. Neither any Loan Party nor any ERISA Affiliate
will contribute to or be required to contribute to any Multiemployer Plan.
(o) Borrowing Base Property Occupancy Level. Permit or suffer to exist the
Borrowing Base Properties in the aggregate to consist of Student Housing
Properties which have an aggregate occupancy level for the preceding four (4)
calendar quarters of tenants in possession and paying rent and which are not in
default under their respective leases of less than eighty-five percent (85%) of
the aggregate rentable units within such Borrowing Base Properties.
(p) Qualifying Trust Preferred Obligations. Make or permit any amendment or
modification to any indenture, note or other agreements evidencing or governing
any Qualifying Trust Preferred Obligations, or if any Default or Event of
Default has occurred and is continuing or would arise as a result thereof,
directly or indirectly pay, prepay, defease or in substance defease, purchase,
redeem, retire or otherwise acquire any Qualifying Trust Preferred Obligations.
SECTION 5.03. Reporting Requirements. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Administrative Agent for
transmission to the Lender Parties in accordance with Section 9.02(b):
(a) Default Notice. As soon as possible and in any event within two days
after obtaining knowledge of the occurrence of any Default or any event,
development or occurrence reasonably likely to have a Material Adverse Effect
continuing on the date of such statement, a statement of the Chief Financial
Officer (or person performing similar functions) of the Parent Guarantor setting
forth details of such Default or such event, development or occurrence and the
action that the Parent Guarantor has taken and proposes to take with respect
thereto.
74
(b) Annual Financials. As soon as available and in any event within 90 days
after the end of each Fiscal Year, a copy of the annual audit report for such
year for the Parent Guarantor and its Subsidiaries (which may be the Parent
Guarantor's annual report on Form 10-K for such year), including therein
consolidated balance sheets of the Parent Guarantor and its Subsidiaries as of
the end of such Fiscal Year and consolidated statements of income and a
consolidated statement of cash flows of the Parent Guarantor and its
Subsidiaries for such Fiscal Year, in each case accompanied by an unqualified
opinion of Ernst & Young LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders, together with (i) a
certificate of such accounting firm to the Lender Parties (to the extent
providing such a certificate does not violate generally-applicable policies of
such accounting firm) stating that in the course of the regular audit of the
business of the Parent Guarantor and its Subsidiaries, which audit was conducted
by such accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a Default has
occurred and is continuing, or if, in the opinion of such accounting firm, a
Default has occurred and is continuing, a statement as to the nature thereof,
(ii) a schedule in form satisfactory to the Administrative Agent (to the extent
providing such a schedule does not violate generally-applicable policies of such
accounting firm) of the computations used by such accountants in determining, as
of the end of such Fiscal Year, compliance with the covenants contained in
Section 5.04, and (iii) a certificate of the Chief Financial Officer (or person
performing similar functions) of the Parent Guarantor stating that no Default
has occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that the Parent Guarantor
has taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event within 45
days after the end of each of the first three quarters of each Fiscal Year,
consolidated balance sheets of the Parent Guarantor and its Subsidiaries as of
the end of such quarter and consolidated statements of income of the Parent
Guarantor and its Subsidiaries for the period commencing at the end of the
previous fiscal quarter and ending with the end of such fiscal quarter and
consolidated statements of income and a consolidated statement of cash flows of
the Parent Guarantor and its Subsidiaries for the period commencing at the end
of the previous Fiscal Year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in reasonable
detail and duly certified (subject to normal year-end audit adjustments) by the
Chief Financial Officer (or person performing similar functions) of the Parent
Guarantor as having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Parent Guarantor has taken and
proposes to take with respect thereto and (ii) a schedule in form satisfactory
to the Administrative Agent of the computations used by the Parent Guarantor in
determining compliance with the covenants contained in Section 5.04.
(d) Borrowing Base Certificate. (i) As soon as available and in any event
within 45 days after the end of each fiscal quarter of the Parent Guarantor,
(ii) at the time any Additional Borrowing Base Property is included in the
definition of "Borrowing Base Property", (iii) at the time any Removed Borrowing
Base Property is excluded from the definition of "Borrowing Base Property", and
(iv) at any time that a Borrowing Base Property fails to satisfy all of the
Borrowing Base Conditions or the covenant set forth in Section 5.02(o), a
Borrowing Base Certificate, as at the end of such fiscal quarter or the date of
such inclusion or exclusion, as the case may be, in each case certified by the
Chief Financial Officer (or person performing similar functions) of the Parent
Guarantor. Borrower shall immediately notify Administrative Agent in the event
that a Borrowing Base Property fails to satisfy any of the Borrowing Base
Conditions. In addition, at all times that the Student Housing Property owned by
1772 Sweet Home Road, LLC is a Borrowing Base Property, then together with the
Borrowing Base Certificate, Borrower shall deliver to Administrative Agent a
calculation of the Distribution Percentage, the SUNY Allocable Book Value and
the SUNY Allocable Net Operating Income, which calculation shall be in form and
substance reasonably satisfactory to Administrative Agent and shall be certified
by the Chief Financial Officer (or person performing similar functions) of the
Parent Guarantor.
75
(e) Borrowing Base Financials. As soon as available and in any event within
45 days after the end of each fiscal quarter of the Parent Guarantor, financial
information in respect of all Borrowing Base Properties (including, without
limitation, with respect to each Borrowing Base Property (i) a statement of
revenues and expenses with respect to such Borrowing Base Property and all other
information and operating statistics necessary to calculate the Net Operating
Income for such Borrowing Base Property and (ii) information on occupancy levels
and average rent levels with respect to such Borrowing Base Property), in form
and detail satisfactory to the Administrative Agent.
(f) Annual Budgets. As soon as available and in any event no later than 45
days after the end of each Fiscal Year, (i) forecasts, prepared by management of
the Parent Guarantor and in form satisfactory to the Administrative Agent, of
balance sheets, income statements and cash flow statements on a monthly basis
for the then current Fiscal Year and on an annual basis for each Fiscal Year
thereafter until the Termination Date and (ii) an operating budget, prepared by
management of the Parent Guarantor and in form satisfactory to the
Administrative Agent, for each Borrowing Base Property for such Fiscal Year.
(g) Reconciliation Statements. If, as a result of any change in accounting
principles and policies from those used in the preparation of the audited
financial statements referred to in Section 4.01(g), the consolidated financial
statements of the Parent Guarantor and its Subsidiaries delivered pursuant to
Section 5.03(b), (c) or (f) will differ in any material respect from the
consolidated financial statements that would have been delivered pursuant to
such Section had no such change in accounting principles and policies been made,
then (i) together with the first delivery of financial statements pursuant to
Section 5.03(b), (c) or (f) following such change, consolidated financial
statements of the Parent Guarantor and its Subsidiaries for the fiscal quarter
immediately preceding the fiscal quarter in which such change is made, prepared
on a pro forma basis as if such change had been in effect during such fiscal
quarter, and (ii) together with each delivery of financial statements pursuant
to Section 5.03(b), (c) or (f) following such change, a written statement of the
chief accounting officer or chief financial officer of the Parent Guarantor
setting forth the differences (including any differences that would affect any
calculations relating to the financial covenants set forth in Section 5.04)
which would have resulted if such financial statements had been prepared without
giving effect to such change.
76
(h) Material Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of its
Subsidiaries of the type described in Section 4.01(f), and promptly after the
occurrence thereof, notice of any adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.
(i) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any Loan
Party or any of its Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration statements, that any
Loan Party or any of its Subsidiaries files with the Securities and Exchange
Commission or any governmental authority that may be substituted therefor, or
with any national securities exchange, which delivery may be made
electronically, including via Syndtrak or posting to the Parent Guarantor's
internet website. (j) Real Property. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report supplementing
Schedule 4.01(p) hereto, including an identification of all owned and leased
real property disposed of by any Loan Party or any of its Subsidiaries during
such Fiscal Year, a list and description (including the street address, county
or other relevant jurisdiction, state, record owner, book value thereof and, in
the case of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all real property acquired or leased by any Loan Party
or any of its Subsidiaries during such Fiscal Year and a description of such
other changes in the information included in such Schedules as may be necessary
for such Schedules to be accurate and complete.
(k) Environmental Conditions. Give notice in writing to the Administrative
Agent (i) promptly upon obtaining knowledge of any material violation of any
Environmental Law affecting any Real Estate Asset or the operations thereof or
the operations of any of its Subsidiaries, (ii) promptly upon obtaining
knowledge of any known release, discharge or disposal of any Hazardous Materials
at, from, or into any Real Estate Asset which it reports in writing or is
reportable by it in writing to any governmental authority and which is material
in amount or nature or which could materially adversely affect the value of such
Real Estate Asset, (iii) promptly upon its receipt of any notice of material
violation of any Environmental Laws or of any material release, discharge or
disposal of Hazardous Materials in violation of any Environmental Laws or any
matter that may result in an Environmental Action, including a notice or claim
of liability or potential responsibility from any third party (including without
limitation any federal, state or local governmental officials) and including
notice of any formal inquiry, proceeding, demand, investigation or other action
with regard to (A) such Loan Party's or any other Person's operation of any Real
Estate Asset, (B) contamination on, from or into any Real Estate Asset, or (C)
investigation or remediation of off-site locations at which such Loan Party or
any of its predecessors are alleged to have directly or indirectly disposed of
Hazardous Materials, or (iv) upon such Loan Party's obtaining knowledge that any
expense or loss has been incurred by such governmental authority in connection
with the assessment, containment, removal or remediation of any Hazardous
Materials with respect to which such Loan Party or any Joint Venture may be
liable or for which a Lien may be imposed on any Real Estate Asset, provided
that any of the events described in clauses (i) through (iv) above would have a
Material Adverse Effect or could reasonably be expected to result in an
Environmental Action with respect to any Borrowing Base Property.
77
(l) Borrowing Base Property Value. Promptly after discovery of any setoff,
claim, withholdings or other defenses to which any Borrowing Base Property is
subject, which (i) would have a material adverse effect on the value of such
Borrowing Base Property, (ii) would have a Material Adverse Effect or (iii) with
respect to such Borrowing Base Property, would constitute a Lien which is not a
Lien described in clauses (a), (b), (d), and (e) of the definition of Permitted
Lien, provide the Administrative Agent with notice thereof.
(m) Material Contracts. As soon as available a copy of any Material
Contract entered into with respect to any Borrowing Base Property after the date
hereof.
(n) Other Information. Promptly, such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as the
Administrative Agent, or any Lender Party through the Administrative Agent, may
from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have, at any
time after the Initial Extension of Credit, any Commitment hereunder, the Parent
Guarantor will:
(a) Maximum Leverage Ratio: Maintain, as of the last day of each fiscal
quarter of the Parent Guarantor, a Leverage Ratio equal to or less than 65%.
(b) Minimum Consolidated Net Worth: Maintain at all times a Consolidated
Net Worth of not less than the sum of (i) $250,000,000 plus (ii) an amount equal
to 75% of the Net Cash Proceeds of all issuances or sales of Equity Interests of
the Parent Guarantor or any of its Subsidiaries consummated after the Closing
Date.
(c) Aggregate Borrowing Base Amount. Not permit at any time (i) the sum of
(A) the Facility Exposure plus (B) the amount of all other Unsecured Debt to
exceed (ii) the Aggregate Borrowing Base Amount.
(d) Minimum Consolidated Fixed Charge Coverage Ratio: Maintain, as of the
last day of each fiscal quarter of the Parent Guarantor, a Consolidated Fixed
Charge Coverage Ratio equal to or greater than 1.50:1.00.
(e) Minimum Fixed Rate/Hedged Debt Ratio: Maintain at all times a
Consolidated Fixed Rate/Hedged Debt Ratio equal to or greater than 70%.
(f) Maximum Secured Debt: Maintain, as of the last day of each fiscal
quarter of the Parent Guarantor, a ratio of Secured Debt to Consolidated Total
Asset Value of not more than 55%.
(g) Maximum Secured Recourse Debt. Maintain, as of the last day of each
fiscal quarter of the Parent Guarantor, a ratio of Secured Recourse Debt to
Consolidated Total Asset Value of not greater than 20%.
78
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Failure to Make Payments When Due. (i) The Borrower shall fail to pay
any principal of any Advance when the same shall become due and payable or (ii)
the Borrower shall fail to pay any interest on any Advance, or any Loan Party
shall fail to make any other payment under any Loan Document, in each case under
this clause (ii) within three Business Days after the same becomes due and
payable; or
(b) Breach of Representations or Warranties. Any representation or warranty
made by any Loan Party (or any of its officers or the officers of its general
partner or managing member, as applicable) under or in connection with any Loan
Document shall prove to have been incorrect in any material respect when made;
or
(c) Breach of Certain Covenants. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇, ▇▇▇▇▇▇▇
▇.▇▇(▇), (▇), (▇), (▇) or (o), Section 5.02, Section 5.03(a) or 5.04; or
(d) Other Defaults Under Loan Documents. Any Loan Party shall fail to
perform or observe any other term, covenant or agreement contained in any Loan
Document on its part to be performed or observed if such failure shall remain
unremedied for 30 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender Party; or
(e) Cross-Defaults. (i) Any Loan Party or any of its Subsidiaries shall
fail to pay any principal of, premium or interest on or any other amount payable
in respect of (A) any Debt of such Loan Party or such Subsidiary (as the case
may be) which is Non-Recourse Debt that is outstanding in a principal amount
(or, in the case of any Hedge Agreement, an Agreement Value) of at least
$20,000,000 either individually or in the aggregate or (B) any Debt of such Loan
Party or such Subsidiary (as the case may be) other than Non-Recourse Debt that
is outstanding in a principal amount (or in the case of any Hedge Agreement, an
Agreement Value) of at least $2,000,000, either individually or in the aggregate
(such Debt described under clauses (A) and (B), whether the obligation of one or
more of the Loan Parties or their respective Subsidiaries, and whether the
subject of one or more separate debt instruments or agreements, exclusive of
Debt outstanding hereunder is referred to herein as "Material Debt") but
excluding Debt outstanding hereunder), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and following the expiration of the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt or in such Hedge
Agreement; or (ii) any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Material Debt, if the effect of
such event or condition is to permit the acceleration of the maturity of such
Material Debt or otherwise permit the holders thereof to cause such Material
Debt to mature, or (iii) the maturity of any such Material Debt shall be
accelerated or any such Material Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Material Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
79
(f) Insolvency Events. Any Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith, either
such proceeding shall remain undismissed or unstayed for a period of 30 days or
any of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (f); provided that, if any of the events or circumstances described
in this clause (f) occur or exist with respect to a Subsidiary of the Parent
Guarantor that is not a Loan Party, such event(s) or circumstance(s) shall not
constitute a Default or an Event of Default so long as (i) such Person has no
Debt other than Non-Recourse Debt, (ii) such event(s) or circumstance(s) will
not result in any liability to any other Subsidiary of the Parent Guarantor as a
result of any Customary Carve-Out Agreement relating to any Non-Recourse Debt of
such Person, and (iii) the sum of the amounts for such Person of the items
listed in the definition of Consolidated Total Asset Value, as determined for
such Person on an unconsolidated basis, do not exceed 1.5% of Consolidated Total
Asset Value as of the date such event(s) occur or such circumstance(s) first
exist; or
(g) Monetary Judgments. Any judgments or orders, either individually or in
the aggregate, for the payment of money in excess of $10,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; provided, however that any
such judgment or order shall not give rise to an Event of Default under this
Section 6.01(g) if and so long as (A) the amount of such judgment or order which
remains unsatisfied is covered by a valid and binding policy of insurance
between the respective Loan Party and the insurer covering full payment of such
unsatisfied amount and (B) such insurer, which shall be rated at least "A-" by
A.M. Best Company, has been notified, and has not disputed the claim made for
payment, of the amount of such judgment or order; or
80
(h) Non-Monetary Judgments. Any non-monetary judgment or order shall be
rendered against any Loan Party or any of its Subsidiaries that could reasonably
be expected to have a Material Adverse Effect, and there shall be any period of
30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(i) Unenforceability of Loan Documents. Any provision of any Loan Document,
after delivery thereof pursuant to Section 3.01 or otherwise, shall for any
reason (other than pursuant to the terms thereof) cease to be valid and binding
on or enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing; or
(j) [Intentionally Omitted.]
(k) Change of Control. A Change of Control shall occur; or
(l) ERISA Events. Any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such ERISA Event)
of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then exist
(or the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $10,000,000; or
(m) Borrowing Base Properties. For any period of 30 consecutive days there
shall be fewer than four Borrowing Base Properties;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender
pursuant to Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, (A) by notice
to the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower, and (B) by notice to each party required under the terms of any
agreement in support of which a Letter of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable; provided,
however that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower or any other Loan Party under any Bankruptcy Law,
(y) the Commitments of each Lender Party and the obligation of each Lender Party
to make Advances (other than Letter of Credit Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant
to Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit shall
automatically be terminated and (z) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
81
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrower to, and forthwith upon such demand the Borrower
will, pay to the Administrative Agent on behalf of the Lender Parties in same
day funds at the Administrative Agent's office designated in such demand, for
deposit in the L/C Cash Collateral Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding. If at any time the
Administrative Agent or the Issuing Bank determines that any funds held in the
L/C Cash Collateral Account are subject to any right or claim of any Person
other than the Administrative Agent and the Lender Parties with respect to the
Obligations of the Loan Parties under the Loan Documents, or that the total
amount of such funds is less than the aggregate Available Amount of all Letters
of Credit, the Borrower will, forthwith upon demand by the Administrative Agent,
pay to the Administrative Agent, as additional funds to be deposited and held in
the L/C Cash Collateral Account, an amount equal to the excess of (a) such
aggregate Available Amount over (b) the total amount of funds, if any, then held
in the L/C Cash Collateral Account that the Administrative Agent, as the case
may be, determines to be free and clear of any such right and claim. Upon the
drawing of any Letter of Credit for which funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the relevant
Issuing Bank or Lenders, as applicable, to the extent permitted by applicable
law.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of the Borrower and each
other Loan Party now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Lender Party in enforcing any rights under
this Agreement or any other Loan Document. Without limiting the generality of
the foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to Administrative Agent or any other Lender Party under or in respect
of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party. This Guaranty is a guaranty of
payment and not merely of collection.
(b) Each Guarantor, the Administrative Agent and each other Lender Party
hereby confirms that it is the intention of all such Persons that this Guaranty
and the Obligations of each Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign,
federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Guarantors, the Administrative Agent and the other Lender Parties hereby
irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or conveyance.
82
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to Administrative Agent or
any other Lender Party under this Guaranty or any other guaranty, such Guarantor
will contribute, to the maximum extent permitted by law, such amounts to each
other Guarantor and each other guarantor so as to maximize the aggregate amount
paid to the Administrative Agent and the other Lender Parties under or in
respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the other Loan Documents, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Administrative Agent or any other Lender Party with
respect thereto. The Obligations of each Guarantor under or in respect of this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any other Loan Party under or in respect of this Agreement or the other the
Loan Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations of
any other Loan Party under or in respect of the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower, any other
Loan Party or any of their Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or
any taking, release or amendment or waiver of, or consent to departure from, any
other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any manner of sale or other disposition of
any collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents or any other assets of
any Loan Party or any of its Subsidiaries;
83
(e) any change, restructuring or termination of the corporate structure or
existence of any Loan Party or any of its Subsidiaries;
(f) any failure of the Administrative Agent or any other Lender Party to
disclose to any Loan Party any information relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
any other Loan Party now or hereafter known to the Administrative Agent or such
other Lender Party (each Guarantor waiving any duty on the part of the
Administrative Agent and each other Lender Party to disclose such information);
(g) the failure of any other Person to execute or deliver this Agreement,
any other Loan Document, any Guaranty Supplement (as hereinafter defined) or any
other guaranty or agreement or the release or reduction of liability of any
Guarantor or other guarantor or surety with respect to the Guaranteed
Obligations; or
(h) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the
Administrative Agent or any other Lender Party that might otherwise constitute a
defense available to, or a discharge of, any Loan Party or any other guarantor
or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by Administrative Agent or any other Lender Party
or any other Person upon the insolvency, bankruptcy or reorganization of the
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any other Lender Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against any Loan Party or any other Person or any collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right
to revoke this Guaranty and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by the Administrative Agent or any other Lender Party that in any
manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed against any of
the other Loan Parties, any other guarantor or any other Person or any
collateral and (ii) any defense based on any right of set-off or counterclaim
against or in respect of the Obligations of such Guarantor hereunder.
(d) [Intentionally Omitted.]
84
(e) Each Guarantor hereby unconditionally and irrevocably waives any duty
on the part of the Administrative Agent or any other Lender Party to disclose to
such Guarantor any matter, fact or thing relating to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
the Borrower, any other Loan Party or any of their Subsidiaries now or hereafter
known by the Administrative Agent or such other Lender Party.
(f) Each Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by this Agreement
and the other Loan Documents and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Guaranty, this
Agreement or any other Loan Document, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of Administrative Agent or any
other Lender Party against the Borrower, any other Loan Party or any other
insider guarantor or any collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower, any other Loan Party
or any other insider guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, all Letters of Credit shall have expired or been terminated and the
Commitments shall have expired or been terminated. If any amount shall be paid
to any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of (a) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty, (b) the
Termination Date and (c) the latest date of expiration or termination of all
Letters of Credit, such amount shall be received and held in trust for the
benefit of the Administrative Agent and the other Lender Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents. If (i) any Guarantor shall make payment to Administrative Agent or
any other Lender Party of all or any part of the Guaranteed Obligations, (ii)
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, (iii) the Termination Date shall
have occurred and (iv) all Letters of Credit shall have expired or been
terminated, the Administrative Agent and the other Lender Parties will, at such
Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by such
Guarantor pursuant to this Guaranty.
85
SECTION 7.05. Guaranty Supplements. Upon the execution and delivery by any
Person of a Guaranty Supplement, (i) such Person shall be referred to as an
"Additional Guarantor" and shall become and be a Guarantor hereunder, and each
reference in this Agreement to a "Guarantor" or a "Loan Party" shall also mean
and be a reference to such Additional Guarantor, and each reference in any other
Loan Document to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to "this Agreement", "this
Guaranty", "hereunder", "hereof" or words of like import referring to this
Agreement and this Guaranty, and each reference in any other Loan Document to
the "Loan Agreement", "Guaranty", "thereunder", "thereof" or words of like
import referring to this Agreement and this Guaranty, shall mean and be a
reference to this Agreement and this Guaranty as supplemented by such Guaranty
Supplement.
SECTION 7.06. Indemnification by Guarantors. (a) Without limitation on any
other Obligations of any Guarantor or remedies of the Administrative Agent or
the other Lender Parties under this Agreement, this Guaranty or the other Loan
Documents, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless the Administrative Agent, each
other Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party in connection with or as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of any Loan Party
enforceable against such Loan Party in accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the Indemnified Parties
shall have any liability (whether direct or indirect, in contract, tort or
otherwise) to any of the Guarantors or any of their respective Affiliates or any
of their respective officers, directors, employees, agents and advisors, and
each Guarantor hereby agrees not to assert any claim against any Indemnified
Party on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the Advances or the Letters of Credit,
the Loan Documents or any of the transactions contemplated by the Loan
Documents.
SECTION 7.07. Subordination. (a) Each Guarantor hereby subordinates any and
all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.07.
(b) Prohibited Payments, Etc. Except during the continuance of a Default
(including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), however, unless the
Administrative Agent otherwise agrees, no Guarantor shall demand, accept or take
any action to collect any payment on account of the Subordinated Obligations.
86
(c) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that the
Administrative Agent and the other Lender Parties shall be entitled to receive
payment in full in cash of all Guaranteed Obligations (including all interest
and expenses accruing after the commencement of a proceeding under any
Bankruptcy Law, whether or not constituting an allowed claim in such proceeding
("Post Petition Interest")) before such Guarantor receives payment of any
Subordinated Obligations.
(d) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if the
Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Administrative Agent
and the other Lender Parties and deliver such payments to the Administrative
Agent on account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of such
Guarantor under the other provisions of this Guaranty.
(e) Administrative Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the
Administrative Agent is authorized and empowered (but without any obligation to
so do), in its discretion, (i) in the name of each Guarantor, to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations (including any
and all Post Petition Interest), and (ii) to require each Guarantor (A) to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to the
Administrative Agent for application to the Guaranteed Obligations (including
any and all Post Petition Interest).
SECTION 7.08. Continuing Guaranty. This Guaranty is a continuing guaranty
and shall (a) remain in full force and effect until the latest of (i) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (ii) the Termination Date and (iii) the latest date
of expiration or termination of all Letters of Credit, (b) be binding upon the
Guarantors, their successors and assigns and (c) inure to the benefit of and be
enforceable by the Administrative Agent and the other Lender Parties and their
successors, transferees and assigns; provided that at such time, if any, as any
Guarantor ceases to have any direct or indirect ownership interest in any
Borrowing Base Property or in any other Loan Party, such Guarantor shall, so
long as no Default or Event of Default has occurred and is continuing or would
be caused thereby, be released from all obligations under this Guaranty and
cease to be a party to this Agreement.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. (a) Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable) and as an Issuing
Bank (if applicable)) hereby appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
the Administrative Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender Party prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement. Notwithstanding anything to
the contrary in any Loan Document, no Person identified as a syndication agent,
documentation agent, senior manager, lead arranger or book running manager, in
such Person's capacity as such, shall have any obligations or duties to any Loan
Party, the Administrative Agent or any other Lender Party under any of such Loan
Documents.
87
The obligations of Administrative Agent hereunder are primarily
administrative in nature, and nothing contained in this Agreement or any of the
other Loan Documents shall be construed to constitute the Administrative Agent
as a trustee for any Lender Party or to create an agency or fiduciary
relationship. Administrative Agent shall act as the contractual representative
of the Lender Parties hereunder and notwithstanding the use of the term
`Administrative Agent', it is understood and agreed that the Administrative
Agent shall not have any fiduciary duties or responsibilities to any Lender
Party by reason of this Agreement or any other Loan Document and is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents.
(b) [Intentionally Omitted.]
SECTION 8.02. Administrative Agents' Reliance, Etc. Neither Administrative
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee; (b) may consult with legal counsel (including
counsel for any Loan Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
Party and shall not be responsible to any Lender Party for any statements,
warranties or representations (whether written or oral) made in or in connection
with the Loan Documents; (d) shall not have any duty to ascertain or to inquire
as to the performance, observance or satisfaction of any of the terms, covenants
or conditions of any Loan Document on the part of any Loan Party or the
existence at any time of any Default under the Loan Documents or to inspect the
property (including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
88
SECTION 8.03. Administrative Agent and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, the Lender
acting as the Administrative Agent shall have the same rights and powers under
the Loan Documents as any other Lender Party and may exercise the same as though
it were not the Administrative Agent; and the term "Lender Party" or "Lender
Parties" shall, unless otherwise expressly indicated, include such Lender acting
as Administrative Agent in its individual capacity. The Lender acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, accept investment banking engagements from
and generally engage in any kind of business with, any Loan Party, any
Subsidiary of any Loan Party and any Person that may do business with or own
securities of any Loan Party or any such Subsidiary, all as if such Lender
acting as Administrative Agent were not the Administrative Agent and without any
duty to account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender Party 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.
SECTION 8.05. Indemnification by Lender Parties. (a) Each Lender Party
severally agrees to indemnify the Administrative Agent (to the extent not
promptly reimbursed by the Borrower) from and against such Lender Party's
ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents (collectively, the
"Indemnified Costs"); provided, however that no Lender Party shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 9.04, to the extent that the Administrative Agent
is not promptly reimbursed for such costs and expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.05 applies whether any such investigation,
litigation or proceeding is brought by any Lender Party or any other Person.
89
(b) Each Lender Party severally agrees to indemnify each Issuing Bank (to
the extent not promptly reimbursed by the Borrower) from and against such Lender
Party's ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against such Issuing Bank in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Issuing
Bank under the Loan Documents; provided, however that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Issuing Bank's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse such Issuing
Bank promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the
Borrower under Section 9.04, to the extent that such Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 8.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to
their respective Revolving Credit Commitments at such time. The failure of any
Lender Party to reimburse the Administrative Agent or any Issuing Bank, as the
case may be, promptly upon demand for its ratable share of any amount required
to be paid by the Lender Parties to the Administrative Agent or such Issuing
Bank, as the case may be, as provided herein shall not relieve any other Lender
Party of its obligation hereunder to reimburse the Administrative Agent or such
Issuing Bank, as the case may be, for its ratable share of such amount, but no
Lender Party shall be responsible for the failure of any other Lender Party to
reimburse the Administrative Agent or such Issuing Bank, as the case may be, for
such other Lender Party's ratable share of such amount. Without prejudice to the
survival of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving 30 days' prior written notice thereof to the Lender
Parties and the Borrower and may be removed at any time with or without cause by
the Required Lenders; provided, however that any removal of the Administrative
Agent will not be effective until it (or its Affiliate) has been replaced as an
Issuing Bank and released from all obligations in respect thereof. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent, which appointment shall, provided that no
Default has occurred and is continuing, be subject to the consent of the
Borrower, such consent not to be unreasonably withheld or delayed. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000 and which appointment shall, provided that no
Default has occurred and is continuing, be subject to the consent of the
Borrower, such consent not to be unreasonably withheld or delayed. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under the Loan Documents. If
within 45 days after written notice is given of the retiring Administrative
Agent's resignation or removal under this Section 8.06 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation or removal shall become effective, (ii) the retiring Administrative
Agent shall thereupon be discharged from its duties and obligations under the
Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such
time, if any, as the Required Lenders appoint a successor Administrative Agent
as provided above. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent shall have become effective, the
provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Administrative Agent under
this Agreement.
90
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Lenders, do any of
the following at any time: (i) waive any of the conditions specified in Section
3.01 or, in the case of the Initial Extension of Credit, Section 3.02, (ii)
amend the definition of "Required Lenders" or otherwise change the number of
Lenders or the percentage of (x) the Commitments, (y) the aggregate unpaid
principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder, (iii) release the Borrower
with respect to any of its monetary Obligations under the Loan Documents or
reduce or limit the obligations of any Guarantor under Article VII or release
such Guarantor or otherwise limit such Guarantor's liability with respect to the
Guaranteed Obligations except in accordance with Section 7.08, (iv) release any
Borrowing Base Property (except as contemplated by the definition of "Removed
Borrowing Base Property"), in each case in any transaction or series of related
transactions, or permit the creation, incurrence, assumption or existence of any
Lien on any individual Borrowing Base Property, in each case in any transaction
or series of related transactions, to secure any Obligations other than
Obligations owing to the Lender Parties under the Loan Documents, (v) amend this
Section 9.01, (vi) increase the Commitments of the Lenders (except as provided
in Section 2.16) or subject the Lenders to any additional obligations, (vii)
reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (viii) extend the Termination Date (except as provided in
Section 2.18) or otherwise postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder or
amend Section 2.06, or (ix) limit the liability of any Loan Party under any of
the Loan Documents; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Bank or each Issuing Bank, as the
case may be, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Swing Line Bank or of the Issuing Banks,
as the case may be, under this Agreement; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or the other Loan Documents.
91
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered, (y)
as and to the extent set forth in Section 9.02(b) and in the proviso to this
Section 9.02(a), in an electronic medium and delivered as set forth in Section
9.02(b) or (z) as and to the extent expressly permitted in this Agreement,
transmitted by e-mail, provided that such e-mail shall in all cases include an
attachment (in PDF format or similar format) containing a legible signature of
the person providing such notice, if to the Borrower, at its address at ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, or, if
applicable, at ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (and in the case of transmission by
e-mail, with a copy by U.S. mail to ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇); if to any Initial Lender, at its Domestic
Lending Office, or, if applicable, at the e-mail address specified opposite its
name on Schedule I hereto (and in the case of a transmission by e-mail, with a
copy by U.S. mail to its Domestic Lending Office); if to any other Lender Party,
at its Domestic Lending Office, or, if applicable, at the e-mail address
specified in the Assignment and Acceptance pursuant to which it became a Lender
Party (and in the case of a transmission by e-mail, with a copy by U.S. mail to
its Domestic Lending Office); if to the Initial Issuing Bank, at its address at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇; Tel:
216/▇▇▇-▇▇▇▇; Fax: 216/▇▇▇-▇▇▇▇; E-mail ▇▇▇▇_▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇; and if to the
Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇; Tel: 216/▇▇▇-▇▇▇▇; Fax: 216/▇▇▇-▇▇▇▇; E-mail
▇▇▇▇_▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇; or, as to the Borrower or the Administrative Agent, at
such other address as shall be designated by such party in a written notice to
the other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or e-mailed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by e-mail,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VIII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof.
(b) So long as KeyBank is the Administrative Agent, materials required to
be delivered pursuant to Section 5.03(a), (b), (c) and (g) shall be delivered to
the Administrative Agent in an electronic medium in a format acceptable to the
Administrative Agent and the Lender Parties by e-mail at
▇▇▇▇_▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇. The Borrower agrees that the Administrative Agent may
make such materials, as well as any other written information, documents,
instruments and other material relating to the Borrower, any Loan Party, any of
their Subsidiaries or any other materials or matters relating to this Agreement,
the Notes or any of the transactions contemplated hereby (collectively, the
"Communications") available to the Lender Parties by posting such notices on
Intralinks or a substantially similar electronic transmission system (the
"Platform"). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy
or completeness of the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Administrative Agent or any of its Affiliates in
connection with the Platform.
92
(c) Each Lender Party agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender Party for purposes of this Agreement, provided
that if requested by any Lender Party, the Administrative Agent shall deliver a
copy of the Communications to such Lender Party by e-mail or telecopier. Each
Lender Party agrees (i) to notify the Administrative Agent in writing of such
Lender Party's e-mail address to which a Notice may be sent by electronic
transmission (including by electronic communication) on or before the date such
Lender Party becomes a party to this Agreement (and from time to time thereafter
to ensure that the Administrative Agent has on record an effective e-mail
address for such Lender Party) and (ii) that any Notice may be sent to such
e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender
Party or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) Each Loan Party agrees jointly and
severally to pay on demand (i) all reasonable out-of-pocket costs and expenses
of the Administrative Agent, the Arranger and each of their Affiliates (the
"Agent Parties") in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses, (B) the reasonable fees and
expenses of counsel for such Agent Parties with respect thereto (including,
without limitation, with respect to reviewing and advising on matters required
to be completed by the Loan Parties on a post-closing basis), with respect to
advising such Agent Parties as to their rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under the Loan
Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto and (C) the reasonable fees and
expenses of counsel for such Agent Parties with respect to the preparation,
execution, delivery and review of any documents and instruments at any time
delivered in connection with the inclusion of any Additional Borrowing Base
Property within the definition of "Borrowing Base Property") and (ii) all
out-of-pocket costs and expenses of each Agent Party and each Lender Party in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of the Loan Documents, whether in any action, suit or litigation,
or any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the fees and expenses of
counsel for such Agent Party and each Lender Party with respect thereto).
93
(b) Each Loan Party agrees to indemnify, defend and save and hold harmless
each Indemnified Party from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated thereby or (ii) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated by
the Loan Documents are consummated. Each Loan Party also agrees not to assert
any claim against any Agent Party, any Lender Party or any of their Affiliates,
or any of their respective officers, directors, employees, agents and advisors,
on any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the Loan
Documents or any of the transactions contemplated by the Loan Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance is made by the Borrower to or for the account of a Lender Party other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is otherwise
required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance; provided that
such compensation shall not include loss of margin or profits.
94
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and obligations
of the Borrower and the other Loan Parties contained in Sections 2.10 and 2.12,
Section 7.06 and this Section 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under any of the
other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, the Administrative Agent and each Lender Party and
each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and otherwise
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the
Administrative Agent, such Lender Party or such Affiliate to or for the credit
or the account of the Borrower or any other Loan Party against any and all of
the Obligations of the Borrower or such Loan Party now or hereafter existing
under the Loan Documents, irrespective of whether the Administrative Agent or
such Lender Party shall have made any demand under this Agreement or such Note
or Notes and although such obligations may be unmatured. The Administrative
Agent and each Lender Party agrees promptly to notify the Borrower or such Loan
Party after any such set-off and application; provided, however that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender Party and
their respective Affiliates under this Section 9.05 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that the Administrative Agent, such Lender Party and their respective Affiliates
may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, each Guarantor named on the signature
pages hereto and the Administrative Agent and the Administrative Agent shall
have been notified by each Initial Lender and each Initial Issuing Bank that
such Initial Lender or such Initial Issuing Bank, as the case may be, has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Guarantors named on the signature pages hereto and the
Administrative Agent and each Lender Party and their respective successors and
assigns, except that neither the Borrower nor any other Loan Party shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); provided, however that (i) each such assignment shall be of a uniform,
and not a varying, percentage of all rights and obligations under and in respect
of one or more of the Facilities, (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender, an Affiliate of
any Lender or a Fund Affiliate of any Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the aggregate amount of
the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 under each
Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser
amount as shall be approved by the Administrative Agent and, so long as no
Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the Borrower), (iii) each such assignment shall be to an
Eligible Assignee, (iv) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any Lender
or a Fund Affiliate of any Lender, in which case notice of such assignment shall
be provided to the Administrative Agent and the Borrower, no such assignments
shall be permitted without the consent, which such consent shall not be
unreasonably withheld, of (A) the Administrative Agent and (B) so long as no
Default or Event of Default shall have occurred and be continuing at the time of
the effectiveness of such assignment, the Borrower and (v) the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and, except if such assignment
is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a
processing and recordation fee of $3,500.
95
(b) Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12, 7.06, 8.05 and 9.04 to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender
Party assignor thereunder and each assignee thereunder confirm to and agree with
each other and the other parties thereto and hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender Party makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender Party makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01 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; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender Party or any other
Lender Party 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; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to the Administrative Agent
by the terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) 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 or Issuing
Bank, as the case may be.
96
(d) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of, and principal amount
of the Advances owing under each Facility to, each Lender Party from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or the
Administrative Agent or any Lender Party at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit E
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. In the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall, if
requested by the applicable Lender, execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
each Facility pursuant to such Assignment and Acceptance and, if any assigning
Lender has retained a Commitment hereunder under such Facility, a new Note to
the order of such assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such new Note or Notes, if any, shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under the undrawn portion of its Letter of
Credit Commitment at any time; provided, however that (i) except in the case of
an assignment to a Person that immediately prior to such assignment was an
Issuing Bank or an assignment of all of an Issuing Bank's rights and obligations
under this Agreement, the amount of the Letter of Credit Commitment of the
assigning Issuing Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000 and shall be in an
integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, provided that such fee shall not be
payable if the assigning Issuing Bank is making such assignment simultaneously
with the assignment in its capacity as a Lender of all or a portion of its
Revolving Credit Commitment to the same Eligible Assignee.
97
(g) Each Lender Party may sell participations to one or more Persons (other
than any Loan Party or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments, the Advances owing to it and the Note or Notes
(if any) held by it); provided, however that (i) such Lender Party's obligations
under this Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
Party shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement,
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of any Loan Document, or any consent to
any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, and (vi)
if, at the time of such sale, such Lender Party was entitled to payments under
Section 2.12(a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to such participant on such date, provided that such
participant complies with the requirements of Section 2.12(e).
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
98
SECTION 9.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 9.09. No Liability of the Issuing Banks. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither any Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to such Administrative Agent's or
such Lender Party's Affiliates and their officers, directors, employees, agents
and advisors and to actual or prospective Eligible Assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as requested or required by any state,
Federal or foreign authority or examiner regulating such Lender Party and (d) to
any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party.
SECTION 9.11. [Intentionally Omitted.]
SECTION 9.12. Patriot Act Notification. Each Lender and the Administrative
Agent (for itself and not on behalf of any Lender) hereby notifies the Loan
Parties that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.L. 107 56 (signed into law October 26, 2001)) (the "Patriot Act"), it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of such Loan Party and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Loan Party in accordance with the Patriot Act. The
Parent Guarantor and the Borrower shall, and shall cause each of their
Subsidiaries to, provide, to the extent commercially reasonable, such
information and take such actions as are reasonably requested by the
Administrative Agent or any Lenders in order to assist the Administrative Agent
and the Lenders in maintaining compliance with the Patriot Act.
99
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.14. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 9.15. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, EACH OTHER LOAN
PARTY, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER
PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[Balance of page intentionally left blank]
100
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
AMERICAN CAMPUS COMMUNITIES
OPERATING PARTNERSHIP LP
By: AMERICAN CAMPUS COMMUNITIES
HOLDINGS LLC, its general partner
By: AMERICAN CAMPUS COMMUNITIES, INC.,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Executive Vice President
------------------------
Signature Page - 1
GUARANTORS:
AMERICAN CAMPUS COMMUNITIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Executive Vice President
------------------------
AMERICAN CAMPUS COMMUNITIES HOLDINGS LLC
By: AMERICAN CAMPUS COMMUNITIES, INC.,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Executive Vice President
------------------------
RAP STUDENT HOUSING PROPERTIES LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
RSVP-ACT, LLC
By: RAP STUDENT HOUSING PROPERTIES LLC,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
TITAN INVESTMENTS II LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
Signature Page - 2
AMERICAN CAMPUS-TITAN II, LLC
By: RSVP-ACT, LLC, its managing member
By: RAP STUDENT HOUSING PROPERTIES LLC,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
ACT-VILLAGE AT TEMPLE LLC
By: AMERICAN CAMPUS-TITAN II, LLC,
its sole member
By: RSVP-ACT, LLC, its managing member
By: RAP STUDENT HOUSING PROPERTIES LLC,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
RFG CAPITAL GROUP, LLC
By: RAP STUDENT HOUSING PROPERTIES LLC,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
RFG CAPITAL MANAGEMENT PARTNERS, L.P.
By: RAP STUDENT HOUSING PROPERTIES LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
Signature Page - 3
RFG-CMP THE VILLAGE ON UNIVERSITY LLC
By: RFG CAPITAL MANAGEMENT PARTNERS,
L.P., its sole member
By: RAP STUDENT HOUSING PROPERTIES LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
SHP-THE VILLAGE ON UNIVERSITY LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
RFG-CMP THE VILLAGE AT SCIENCE DRIVE,
LLC
By: RFG CAPITAL MANAGEMENT PARTNERS,
L.P., its sole member
By: RAP STUDENT HOUSING PROPERTIES LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
SHP-THE VILLAGE AT SCIENCE DRIVE, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
RFG-CMP ACT LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
Signature Page - 4
SHP-ACT LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
AMERICAN CAMPUS-TITAN LLC
By: SHP-ACT LLC, its managing member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
ACT-VILLAGE AT FRESNO STATE, LLC
By: AMERICAN CAMPUS-TITAN LLC,
its sole member
By: SHP-ACT LLC, its managing member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
ACC OP SWEET HOME LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------
Title: Vice President
--------------
Signature Page - 5
LENDERS:
KEYBANK NATIONAL ASSOCIATION,
individually as a Lender and as
Administrative Agent, Swing Line
Bank and Issuing Bank.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Title: Vice President
--------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
------------
Title: Director
--------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------
Title: Assistant Vice President
------------------------
CITICORP NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-----------
Title: Vice President
--------------
JPMORGAN CHASE BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------
Title: Assistant Vice President
------------------------
Signature Page - 6
PNC BANK, NATIONAL ASSOCIATION.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------
Title: Senior Vice President
---------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------
Title: Vice President
--------------
Signature Page - 7
SCHEDULE I
----------
COMMITMENTS AND APPLICABLE LENDING OFFICES
------------------------------------------
------------------------------------------------------------------------------------------------------------
Name of Revolving Letter of Swing Line Domestic Lending Office Eurodollar Lending Office
Initial Credit Credit Commitment
Lender/ Commitment Commitment
Initial
Issuing
Bank
------------------------------------------------------------------------------------------------------------
KeyBank $25,000,000 $15,000,000 $15,000,000 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Association Attn: ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Tel. ▇▇▇-▇▇▇-▇▇▇▇ Tel. ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: E-mail:
▇▇▇▇_▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇_▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------
Deutsche $18,000,000 -- -- ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 90 ▇▇▇▇▇▇ Street
Bank Trust Mail Stop: JCY05-0199 Mail Stop: JCY05-0199
Company ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Americas Attn: Deal Administration Attn: Deal Administration
------------------------------------------------------------------------------------------------------------
Citicorp $18,000,000 -- -- ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
America, Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc. Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇. E-mail: ▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------
JPMorgan $18,000,000 -- -- ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ 707 ▇▇▇▇▇▇, 6th Floor
Chase Bank, Houston, TX 77002 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
N.A. Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: E-mail:
▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------
PNC Bank, $18,000,000 -- -- One PNC Plaza One PNC Plaza
National ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: E-mail:
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇ ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------
Schedule I
------------------------------------------------------------------------------------------------------------
Name of Revolving Letter of Swing Line Domestic Lending Office Eurodollar Lending Office
Initial Credit Credit Commitment
Lender/ Commitment Commitment
Initial
Issuing
Bank
------------------------------------------------------------------------------------------------------------
LaSalle $18,000,000 -- -- ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 135 ▇. ▇▇▇▇▇▇▇ Street,
Bank Suite 1225 Suite 1225
National Chicago, IL 60603 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Association Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: E-mail:
▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Total $115,000,000 $15,000,000 $15,000,000
---------------------------------------------------
Schedule I
SCHEDULE V
EXISTING LETTERS OF CREDIT
--------------------------
Issuer Letter of Credit Number Face Amount
------ ----------------------- -----------
KeyBank National Association S311030 $1,190,083.90