- Defined Terms. In addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
"Acquisition down-REIT" shall have the meaning set forth inSection 6.5.2(1).
"Act" shall have the meaning set forth inSection 11.19.
"Administrative Agent" means BankAmerica, in its capacity as administrative agent for the Lenders hereunder and under the other Loan Documents, and any successor administrative agent designated underSection 10.10.
"Administrative Agent's Office" means Administrative Agent's address and, as appropriate, account as set forth onSchedule 1.2, or such other address or account as Administrative Agent may from time to time notify Borrower and the Lenders in writing.
"Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by Administrative Agent.
"Affiliate" means, with respect to a specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the specified Person. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Agent-Related Persons" means BankAmerica and any successor administrative agent hereunder, together with their respective Affiliates (including, in the case of BankAmerica in its capacity as Administrative Agent) and the officers, directors, employees, and agents of such Persons.
"Agent's Payment Office" means the address for payments set forth herein for Administrative Agent, as specified inSchedule 1.2, or such other address as Administrative Agent may from time to time specify by the delivery of a written notice.
"Agreement" means this Third Amended and Restated Revolving Credit Agreement, as supplemented, modified, amended or amended and restated from time to time.
"Applicable LIBOR Margin" means the Applicable Margin for LIBOR Loans.
"Applicable Margin" means the Applicable LIBOR Margin or the Applicable Reference Rate Margin determined from the following pricing grid based on the current published or private pro forma ratings of Guarantor's senior unsecured long term debt by the Rating Agencies:
Guarantor's Senior Unsecured Long Term Debt Rating | Applicable Libor Margin (bps) | Facility Fee (bps Per Annum) | Applicable Reference Rate Margin (bps) |
BBB+/Baa1 or better | 70 | 15 | 0 |
BBB/Baa2 | 85 | 15 | 0 |
BBB-/Baa3 | 100 | 20 | 0 |
Less than BBB-/Baa3 | 120 | 30 | 25 |
Borrower shall provide to Administrative Agent annually, on or before June 30, written evidence of the current rating on Guarantor's senior unsecured long term debt by the Rating Agencies, which evidence shall be reasonably acceptable to Administrative Agent. In the event of a difference in rating between the Rating Agencies, the Applicable Margin shall be based on the lower rating. Changes in the Applicable Margin shall become effective on the first day following the date on which one or both of the Rating Agencies changes the rating on Guarantor's senior unsecured long term debt.
"Applicable Reference Rate Margin" means the Applicable Margin for Reference Rate Loans.
"Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption Agreement substantially in the form ofExhibit F.
"Availability" means, at any time, an amount equal to the least of (a) fifty-five percent (55%) of the Unencumbered Asset Pool Value at such time, or (b) the Maximum Commitment Amount at such time.
"BankAmerica" means Bank of America, N.A. and its successors.
"Borrower" has the meaning set forth in the introductory clause hereof.
"Borrower's Knowledge" means the actual knowledge of the General Counsel, Chief Financial Officer or Vice President-Finance of the general partner of Borrower;provided, however, that, if Administrative Agent, L/C Issuer or any Lender sends a notice with regards to any matter pursuant to the provisions ofSection 11.2 hereof, Borrower shall be deemed to have knowledge of the matters set forth in such notice as of the date of receipt of such written notice.
"Borrowing" means any borrowing hereunder consisting of Loans of the same Type made by the Lenders to Borrower on the same day underArticle 2 and, other than in the case of Reference Rate Loans, having the same Interest Period, but does not include (a) a conversion of Loans of one Type to another Type or (b) a continuation of a Loan as a Loan of the same Type, but with a new Interest Period.
"Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks in New York, New York and the state where Administrative Agent's Office is located, are authorized or required by law to close and, if the applicable Business Day relates to any LIBOR Loan, means such a day on which dealings are carried on in the applicable offshore dollar interbank eurodollar market.
"Capital Adequacy Regulation" means any guideline or directive of any central bank or other Governmental Authority, or any other law, rule or regulation regarding capital adequacy of any Lender or of any corporation controlling a Lender.
"Capital Interest" means, with respect to any Joint Venture, the ratio of (i) Borrower's contribution to the capital of such Joint Venture to (ii) the aggregate amount of all contributions to the capital of such Joint Venture.
"Capitalization Rate" means eight and one-quarter percent (8.25%);provided, however, that the Required Lenders may during the term of this Agreement and in their reasonable discretion, adjust the Capitalization Rate up to eight and one-half percent (8.5%).
"Capital Reserve" means the greater of (a) $62.50 per unit per quarter; and (b) the actual Non-Revenue Generating Capital Expenditures per weighted average occupancy unit for all real properties owned by Guarantor and its consolidated subsidiaries, excluding in both cases, however, units owned by Acquisition down-REITs. For the purposes of this definition, "Non- Revenue Generating Capital Expenditures" shall mean improvements and upgrades that extend the useful life of such real property, calculated in a manner consistent with Guarantor's Form 10-K Annual Report for Guarantor's fiscal year ending December 31, 2003.
"Cash Collateralize" has the meaning set forth inSection 2.4.5. Derivatives of such term have corresponding meanings.
"Certificate of Compliance" shall have the meaning set forth inSection 6.22.
"Claims" shall have the meaning set forth inSection 11.4.
"Closing Date" means the earliest date on which all conditions precedent set forth inSection 5.1 are satisfied or waived by Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.
"Commitment" means, as to each Lender, its obligation to (a) make Loans to Borrower pursuant toSection 2, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name onSchedule 1.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
"Compliance Certificate" shall have the meaning set forth inSection 4.1(b).
"Conversion" shall have the meaning set forth inSection 6.22.
"Credit Line" has the meaning given to it in Recital A.
"Debt Service" means the sum of (x) the aggregate interest payments, Letter of Credit Fee and other fees paid or payable in respect of or relating to debt on a property, plus (y) the aggregate principal installments paid and payable (but not balloon payments due at maturity) in respect of or relating thereto.
"Default" means any event or circumstance which, with notice or the passage of time or both, would become an Event of Default.
"Defaulting Lender" means any Lender that (a) has failed to fund any portion of the Loans (including Swing Loans) or participations in Letters of Credit required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Defaulting Lender Amount" has the meaning given to it inSection 2.16.1.
"Defaulting Lender Notice" has the meaning given to it inSection 2.16.1.
"Default Rate" means the per annum rate of interest that is 300 basis points in excess of the rate otherwise applicable.
"EBITDA" means, for any fiscal period of Guarantor and its consolidated subsidiaries, (a) the sum for such period of (i) consolidated net income, (ii) consolidated interest expense (including capitalized interest expense); (iii) consolidated charges against income for all federal, state and local taxes based on income, (iv) consolidated depreciation expense, (v) consolidated amortization expense, (vi) the aggregate amount of other non-cash charges and expenses, and (vii) the aggregate amount of extraordinary losses included in the determination of consolidated net income for such period,less (b) the aggregate amount of extraordinary gains included in the determination of consolidated net income for such period, and in each case excluding all Non-Borrower Interests, all as determined in accordance with GAAP, consistently applied. For purposes of this definition, EBITDA includes Borrower's pro rata shares of interest expense, federal, state and local taxes based on income, depreciation expense and amortization expense for Joint Ventures, based on its Capital Interests in such Joint Ventures.
"Effective Date" shall have the meaning set forth inSection 2.12.3(e).
"Electing Lender" has the meaning given to it inSection 2.16.1.
"Election Notice" has the meaning given to it inSection 2.16.1.
"Election Period" shall have the meaning set forth inSection 2.16.1.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by (i) Administrative Agent in its reasonable discretion, and (ii) unless an Event of Default has occurred and is continuing, Borrower (each such approval not to be unreasonably withheld or delayed);provided, however, that notwithstanding the foregoing, "Eligible Assignee" shall not include Borrower or any of Borrower's Affiliates or subsidiaries. Approval by Administrative Agent or, if required, by Borrower of any Person as an Eligible Assignee shall not constitute a waiver of any right to approve any other Person before such other Person can become an Eligible Assignee.
"EMC" means Essex Management Corporation, a California corporation.
"Environmental Laws" means all federal, state, and local laws, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements, governmental restrictions and regulations relating to pollution and the protection of the environment or the release of any Hazardous Substances into the environment, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. § 2601 et seq., the Clean Water Act, 33 U.S.C. § 466 et seq., as amended, and the Clean Air Act, 42 U.S.C. § 7401 et seq.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.
"Event of Default" means any of the events or circumstances specified inSection 8.1.
"Existing Agreement" has the meaning given to it in Recital A.
"Existing Letters of Credit"means the letters of credit listed onSchedule 1.3 hereto.
"Facility Fee" has the meaning given to it inSection 2.10.1.
"Federal Funds Rate" means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day;provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to BankAmerica on such day on such transactions as determined by Administrative Agent.
"Fee Letter" has the meaning given to it inSection 2.10.3.
"Fixed Charges" means, for any fiscal period of Guarantor and its consolidated subsidiaries, the sum of the following items for such period (including Borrower's share of each such item for each Joint Venture based on its Capital Interest in such Joint Venture): (i) interest expense (whether paid or accrued), (ii) capitalized interest expense, (iii) preferred stock dividends, (iv) scheduled principal payments on Indebtedness, other than balloon payments and (v) a reserve for recurring capital expenditures in an amount equal to the Capital Reserve for such period.
"Fronting Fee" has the meaning set forth inSection 2.10.2.
"Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
"Funds From Operations" means, with respect to Guarantor and its consolidated subsidiaries, net income calculated in conformity with the National Association of Real Estate Investment Trusts in its April 2002 White Paper on Funds From Operations.
"GAAP" means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government, and any entity owned or controlled, through capital ownership or otherwise, by any of the foregoing.
"Gross Asset Value" means, at any time, the sum (without duplication) of (i) an amount equal to EBITDA for Guarantor and its consolidated subsidiaries for the most recent fiscal quarter for which Administrative Agent has received financial statements (excluding any income attributable to properties bought or sold during such fiscal quarter and any income received during such fiscal quarter attributable to the Clarewood Office Building located at 22110-22120 Clarendon Street, Woodland Hills, California, and the office building located at 925 East Meadow Drive, Palo Alto, California), multiplied by four (4) and divided by the Capitalization Rate (expressed as a decimal); (ii) the amount of cash and marketable securities held by Guarantor and its consolidated subsidiaries as of the end of such fiscal quarter; (iii) the aggregate acquisition cost of properties acquired by Guarantor or any of its consolidated subsidiaries during such fiscal quarter (including Borrower's pro rata shares of any properties acquired by Joint Ventures, based on its Capital Interests in such Joint Ventures); (iv) the aggregate book value of all development in progress as of the end of such fiscal quarter (including Borrower's pro rata share of development in progress held by Joint Ventures, based on its Capital Interests in such Joint Ventures), as reported on Guarantor's 10K and 10Q; (v) $4,500,000, if Borrower owns the Clarewood Office Building located at 22110-22120 Clarendon Street, Woodland Hills, California at such time; and (vi) $4,500,000, if Borrower owns the office building located at 925 East Meadow Drive, Palo Alto, California at such time.
"Guarantor" means Essex Property Trust, Inc., a Maryland corporation operating as a real estate investment trust.
"Guaranty" means that certain Second Amended and Restated Payment Guaranty of even date herewith, executed by Guarantor and substantially in the form ofExhibit G-1 attached hereto.
"Guaranty Obligation" means, as applied to any Person, any direct or indirect liability of that Person with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the "primary obligations") of another Person. The amount of any Guaranty Obligation shall be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof.
"Hazardous Substance" means any substance, material or waste, including asbestos and petroleum (including crude oil or any fraction thereof), polychlorinated biphenyls, radon gas, urea formaldehyde foam insulation, explosive or radioactive material, or infectious or medical wastes, which is or becomes designated, classified or regulated as "toxic," "hazardous," a "pollutant" or similar designation under, or which is regulated pursuant to, any Environmental Law.
"Honor Date" shall have the meaning set forth inSection 2.4.1(a).
"Indebtedness" of any Person means, without duplication, (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services; (c) all reimbursement obligations with respect to surety bonds, letters of credit and similar instruments; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by the 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); (f) all indebtedness referred to in clauses (a) through (e) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; and (g) all Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (e) above.
"Indemnified Liabilities" has the meaning given to it inSection 11.4.
"Indemnified Person" has the meaning given to it inSection 11.4.
"Insolvency Proceeding" means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each case (a) and (b) undertaken under U.S. federal, state or foreign law, including the United States Bankruptcy Code (11 U.S.C. 101et seq.).
"Interest Payment Date" means (a) the first Business Day of each month for interest due through the last day of the preceding month, (b) the Maturity Date, and (c) the date of any prepayment of any Loan made hereunder, as to the amount prepaid.
"Interest Period" means, with respect to any LIBOR Loan, the period commencing on the Business Day the Loan is disbursed or continued or on the conversion date on which the Loan is converted to a LIBOR Loan and ending on the date that is one (1), two (2), three (3), six (6), nine (9) (subject to the availability by all of the Lenders) or twelve (12) (subject to the availability by all of the Lenders) months thereafter, as selected by Borrower in its Notice of Borrowing or Conversion/Continuation; provided that:
(a) if any Interest Period pertaining to a LIBOR Loan would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day; and
(b) any Interest Period pertaining to a LIBOR Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
"ISP" means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
"Joint Venture" means a Person in which Borrower has an ownership interest that is less than one hundred percent (100%).
"Joint Venture Investments" means the aggregate amount of Borrower's investments (valued in accordance with GAAP), advances and loans to Joint Ventures unconsolidated under GAAP, excluding investments in such Joint Ventures in which Borrower's Capital Interest is less than fifteen percent (15%).
"L/C Advance" means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
"L/C Issuer" means BankAmerica in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate undrawn amount of all outstanding Letters of Creditplus the aggregate of all Unreimbursed Amounts. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount so remaining available to be drawn.
"Lenders" means BankAmerica and the several additional financial institutions from time to time a party to this Agreement.
"Lending Office" means, as to any Lender, the office specified as its Lending Office on the signature pages hereto, or such other office as such Lender may designate to Borrower and Administrative Agent in writing from time to time.
"Letter of Credit" means a standby letter of credit issued by BankAmerica for Borrower's account pursuant toSection 2.1, and shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
"Letter of Credit Fee" has the meaning set forth inSection 2.10.2.
"Letter of Credit Sublimit" means, at any time, the lesser of (a) $20,000,000 or (b) the difference between (i) the Availability at such timeand (ii) the aggregate Outstanding Amount of all Loans and the Outstanding Amount of all L/C Obligations outstanding at such time.
"LIBOR Base Rate" has the meaning set forth in the definition of LIBOR Rate.
"LIBOR Borrowing" means a Borrowing consisting of LIBOR Loans.
"LIBOR Loan" means a Loan that bears interest based on the LIBOR Rate.
"LIBOR Rate" means, for any Interest Period with respect to any LIBOR Loan, a rate per annum determined by Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR Base Rate
1.00 − LIBOR Reserve Percentage
Where,
"LIBOR Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by Administrative Agent to be the offered rate that appears on the page of the Telerate screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear on such page or service or such page or service shall not be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by Administrative Agent as the rate of interest at which deposits in dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by BankAmerica and with a term equivalent to such Interest Period would be offered by BankAmerica's London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two Business Days prior to the first day of such Interest Period.
"LIBOR Reserve Percentage" means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to LIBOR funding (currently referred to as "LIBOR liabilities"). The LIBOR Rate for each outstanding LIBOR Loan shall be adjusted automatically as of the effective date of any change in the LIBOR Reserve Percentage.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the lessor's interest under a capital lease (determined in accordance with GAAP), any financing lease having substantially the same economic effect as any of the foregoing, or the filing of any financing statement under the UCC or any comparable law naming the owner of the asset to which such lien relates as debtor) and any contingent or other agreement to provide any of the foregoing, but not including the interest of a lessor under an operating lease (determined in accordance with GAAP).
"Loan" means an extension of credit by a Lender to Borrower pursuant toArticle 2, and may be a Reference Rate Loan, a LIBOR Loan or, in the case of the Swing Line Lender, a Swing Loan.
"Loan Documents" means this Agreement, the Swing Line Note, the Notes, the Guaranty, each Payment Guaranty and any other documents delivered to Administrative Agent, on behalf of the Lenders, in connection therewith, in each case as supplemented, modified, amended or amended and restated from time to time.
"Maturity Date" means April 30, 2007, as the same may be extended pursuant toSection 2.8.
"Maximum Commitment Amount" means, at any time, an amount equal to $185,000,000, subject to increase pursuant to, and on the terms and subject to the conditions set forth in,Section 2.12, and to decrease pursuant to the provisions ofSection 2.6.
"Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
"Net Operating Income" for a property means, for the relevant period, the aggregate total cash revenues actually collected from the normal operation of such property (excluding all security deposits until such time as the tenant or other user making such deposit is no longer entitled to return thereof), plus amounts payable to unrelated third parties on behalf of the owner of the property, if actually paid, plus the proceeds of any rental or business interruption insurance actually received by the owner of the property with respect to such property, from which there shall be deducted all costs and expenses paid or payable by the owner and relating to such property (other than Debt Service which is paid and balloon payments), including (a) any charges paid in connection with the use, ownership or operation of such property, (b) any cost of repairs and maintenance, (c) any cost associated with the management of such property, (d) any payroll cost and other expenses for general administration and overhead paid in connection with the use, ownership or operation of such property, (e) current real estate taxes, (f) any sums paid or subject to payment in the nature of a rebate, refund or other adjustment to revenue previously collected, (g) all assessment bond indebtedness (whether principal or interest) in respect of such property paid or payable for the interval in question, (h) all amounts paid to unrelated third parties on behalf of the owner of the property, and (i) any and all costs or expenses, of whatever nature or kind, incurred in connection with the use, ownership or operation of the property; provided, however, that such costs and expenses paid or payable by Borrower and relating to such property shall not include tenant improvement costs, leasing commissions or the costs and expenses of capital improvements and capital repairs, or depreciation, amortization or other non-cash expenses.
"Nominated Property" has the meaning given to it inSection 4.1(a).
"Non-Borrower Interests" means (a) the portion of capital contributed to Borrower or any Joint Venture by a Person other than Borrower or Guarantor; and (b) the portion of income of Borrower or any Joint Venture that is allocated to a Person other than Borrower or Guarantor.
"Non-Recourse Indebtedness" means, with respect to any Person, Indebtedness of that Person with respect to which recourse to such Person for payment is contractually limited to specific assets encumbered by a Lien securing such Indebtedness. Notwithstanding the foregoing, Indebtedness of any Person shall not fail to constitute Non-Recourse Indebtedness by reason of the inclusion in any document evidencing, governing, securing or otherwise relating to such Indebtedness to the effect that such Person shall be liable, beyond the assets securing such Indebtedness, for (a) misapplied moneys, including insurance and condemnation proceeds and security deposits, (b) liabilities (including environmental liabilities) of the holders of such Indebtedness and their affiliates to third parties, (c) breaches of customary representations and warranties given to the holders of such Indebtedness, (d) commission of waste with respect to any part of the collateral securing such Indebtedness, (e) recovery of rents, profits or other income attributable to the collateral securing such Indebtedness collected following a default, (f) fraud, gross negligence or willful misconduct, (g) breach of any covenants regarding compliance with ERISA, and (h) other similar exceptions to the non-recourse nature of the Indebtedness imposed by an institutional lender.
"Note(s)" means each promissory note of Borrower payable to the order of a Lender, substantially in the form ofExhibit H-1 hereto, and any amendments, supplements, modifications, renewals, replacements, consolidations or extensions thereof, evidencing the aggregate indebtedness of Borrower to a Lender resulting from Loans made by such Lender pursuant to this Agreement; "Notes" means, at any time, all of the Notes (other than the Swing Line Note) executed by Borrower in favor of a Lender outstanding at such time.
"Notice of Borrowing or Conversion/Continuation" means a notice substantially in the form ofExhibit B given by Borrower to Administrative Agent pursuant toSection 2.4 orSection 2.5, as applicable, which shall include, in the case of a request for a Letter of Credit, a Letter of Credit Application.
"O&M Plan" means an operations and maintenance plan relating to any asbestos containing materials.
"Obligations" means all Loans, advances, debts, liabilities, obligations and covenants owing from Borrower, Guarantor or any Permitted Affiliate to any Lender, Administrative Agent or any Indemnified Person under any Loan Document, whether absolute or contingent, due or to become due, now existing or hereafter arising ,and including interest and fees that accrue after the commencement by or against Borrower, Guarantor or any Permitted Affiliate of any proceeding under any Insolvency Proceeding naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
"Outstanding Amount" means (s) with respect to Loans (including Swing Loans) on any date, (a) the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to the issuance, extension or increase of any Letter of Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.
"Participant" shall have the meaning set forth inSection 11.5(c).
"Payment Guaranty" means a guaranty by a Permitted Affiliate of the Obligations of Borrower under this Agreement in favor of Administrative Agent, as administrative agent for the Lenders, substantially in the form ofExhibit G-2 hereto.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
"Permitted Affiliate" means each direct or indirect wholly- owned subsidiary of Borrower or Guarantor that owns an Unencumbered Asset Pool Property and is or becomes a party to a Payment Guaranty, including, on the Closing Date, each entity that is listed onSchedule 1.4 hereto. Upon removal of the Unencumbered Asset Pool Property owned by such subsidiary from the Unencumbered Asset Pool pursuant toSection 4.1(b) orSection 4.1(c), and as long as such subsidiary no longer owns any Unencumbered Pool Property included in the calculation of Availability, such subsidiary shall no longer constitute a Permitted Affiliate hereunder.
"Permitted Liens" has the meaning given to it inSection 4.1(a)(5).
"Person" means an individual, corporation, partnership, joint venture, limited liability company, joint stock company, business trust, unincorporated association or Governmental Authority.
"Plan" means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) established by Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
"Pro Rata Share" means, as to any Lender at any time, the percentage equivalent (expressed as a decimal rounded to the ninth decimal place) at such time of such Lender's share of the credit and the outstanding Loans. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender onSchedule 1.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Rating Agencies" means, collectively, (1) Standard & Poor's Rating Services, a division of The McGraw- Hill Companies, Inc., and (2) either (i) Moody's Investors Service, Inc., or (ii) Fitch, Inc.
"Reference Rate" means the fluctuating rate of interest publicly announced from time to time by BankAmerica as its "prime rate." The Reference Rate is set by Administrative Agent based on various factors, including BankAmerica's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing loans. BankAmerica may price loans at, above or below the Reference Rate. Any change in the Reference Rate shall take effect on the day specified in the public announcement of such change. In the event that BankAmerica no longer announces a "prime rate", the Reference Rate will be a per annum rate of interest equal to fifty (50) basis points above the Federal Funds Rate, with changes in the Reference Rate from time to time taking effect on the same date as corresponding changes in the Federal Funds Rate.
"Reference Rate Borrowing" means a Borrowing consisting of Reference Rate Loans.
"Reference Rate Loan" means a Loan that bears interest based on the Reference Rate.
"Register" shall have the meaning set forth inSection 11.5(b).
"Reportable Event" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
"Responsible Officer" means any officer of the general partner of Borrower having the authority to execute Loan Documents or Notices of Borrowing or Conversion/Continuation on behalf of Borrower, as identified to Administrative Agent in a certificate executed by the General Counsel, Chief Financial Officer, Vice President-Finance or Secretary of Borrower's general partner.
"Required Lenders" means at any time two (2) or more Lenders then holding at least sixty-six and two-thirds percent (66.67%) of the then aggregate unpaid principal amount of the Loans (not including any Swing Loan) (or, if no principal amount is then outstanding, two (2) or more Lenders then having at least sixty-six and two-thirds percent (66.67%) of the aggregate amount of the Commitment); and provided, however, that the Commitment of, and the portion of the Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
"Requirements of Law" means, as to any Person, any law (statutory or common), treaty, rule or regulation, or any determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
"Requirements" shall have the meaning set forth inSection 6.1.1.
"Secured Debt" means Indebtedness that is secured by a Lien encumbering property owned or leased by the obligor.
"Supplemental Signature Page" shall have the meaning set forth inSection 2.12.3(c).
"Swing Line" has the meaning given to it inSection 2.2.1.
"Swing Line Availability" means, at any time, the lesser of (a) $25,000,000 or (b) the difference between (i) the Availability at such timeand (ii) the aggregate Outstanding Amount of all Loans and the Outstanding Amount of all L/C Obligations outstanding at such time.
"Swing Line Lender" means BankAmerica, in its capacity as the maker of Swing Loans underSection 2.2, or any successor or replacement thereto underSections 10.10 or11.5(e).
"Swing Line Note" means the promissory note of Borrower payable to the order of the Swing Line Lender, substantially in the form ofExhibit H-2 attached hereto, to evidence the Swing Loans, and any amendments, supplements, modifications, renewals, replacements, consolidations or extensions thereof.
"Swing Loan" and "Swing Loans" have the meanings given to them inSection 2.2.1.
"Tangible Net Worth" means at any time, the total consolidated stockholders' equity of Guarantor and its consolidated subsidiaries at such time, determined in accordance with GAAP, exclusive of Non-Borrower Interests, excluding as assets (i) any loans to tenants for tenant improvements and (ii) assets considered to be intangible under GAAP, including, without limitation, goodwill.
"Total Liabilities" means, without duplication, (a) all Indebtedness of Guarantor and its consolidated subsidiaries, including subordinated debt, capitalized leases, purchase obligations (defined as nonrefundable deposits and non-contingent obligations), L/C Obligations and unfunded obligations of Guarantor, Borrower or any consolidated subsidiary reported in accordance with GAAP, (b) Borrower's and Guarantor's pro rata share of non-recourse liabilities of unconsolidated Joint Ventures, based on its Capital Interests in such Joint Ventures; and (c) all liabilities of Affiliates that are recourse to Borrower or Guarantor. The term "Total Liabilities" does not include (i) that portion of Borrower's liabilities attributable to Non-Borrower Interests; and (ii) except as provided in "(b)" above, the Non-Recourse Indebtedness of an Acquisition down- REIT.
"Type" means, in connection with a Loan, the characterization of such loan as a Reference Rate Loan or a LIBOR Loan.
"UCC" means the Uniform Commercial Code as in effect in any jurisdiction, as the same may be amended, modified or supplemented from time to time.
"Unencumbered Asset Pool" means, at any time, all of the Unencumbered Asset Pool Properties at such time.
"Unencumbered Asset Pool Property" means a real property listed onExhibit A and any additional real property that satisfies all of the conditions set forth inSection 4.1(a), in each case so long as either Borrower or a Permitted Affiliate holds fee simple title to such real property.
"Unencumbered Asset Pool Value" means, at any time, an amount equal to the sum of the Unencumbered Asset Value at such time for each Unencumbered Asset Pool Property at such time.
"Unencumbered Asset Value" means, for an Unencumbered Asset Pool Property at any time,
(a) if at such time Borrower or a Permitted Affiliate has owned such Unencumbered Asset Pool Property for four (4) or more full consecutive calendar quarters, an amount equal to (i) its Net Operating Income for the most recent four (4) consecutive quarter period,less the Capital Reserve for such period,dividedby (ii) the Capitalization Rate (expressed as a decimal);
(b) if at such time Borrower or a Permitted Affiliate has owned such Unencumbered Asset Pool Property for one (1) full calendar quarter or more but fewer than four (4) full consecutive calendar quarters, an amount equal to (i) its annualized Net Operating Income for the number of the most recent full consecutive quarters that Borrower has owned such property (e.g., Net Operating Income for properties owned for two (2) full consecutive quarters is annualized by multiplying by a factor of two (2)),less the Capital Reserve for such period,dividedby (ii) the Capitalization Rate (expressed as a decimal); or
(c) if at such time Borrower or a Permitted Affiliate has owned such Unencumbered Asset Pool Property for less than one (1) full calendar quarter, an amount equal to its acquisition cost.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan's assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
"Unreimbursed Amount" has the meaning specified inSection 2.4.1(a).
"Unsecured Debt" means, at any time, all Indebtedness of Borrower, Guarantor and any wholly owned subsidiary of Borrower or Guarantor that is not Secured Debt at the end of Guarantor's most recent fiscal quarter, including, without limitation, Indebtedness arising under the Loan Documents.
Terms capitalized in this Agreement and not defined in thisSection 1 have the meanings given to them elsewhere in this Agreement.
- Other Interpretive Provisions.
- Use of Defined Terms. Unless otherwise specified herein or therein, all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant to this Agreement. The meaning of defined terms shall be equally applicable to the singular and plural forms of the defined terms.
- Certain Common Terms.
- The Agreement. The words "hereof," "herein," "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, schedule and exhibit references are to this Agreement unless otherwise specified.
- Documents. The term "documents" includes any and all instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.
- Including. The term "including" is not limiting and means "including without limitation."
- Performance. Whenever any performance obligation hereunder (including a payment obligation) is stated to be due or required to be satisfied on a day other than a Business Day, such performance shall be made or satisfied on the next succeeding Business Day. In the computation of periods of time from a specified date to a later specified date (other than with respect to computation of interest owed or accrued under this Agreement), the word "from" means "from and including" and the words "to" and "until" each mean "to and including". If any provision of this Agreement refers to any action taken or to be taken by any Person, or which such Person is prohibited from taking, such provision shall be interpreted to encompass any and all reasonable means, direct or indirect, of taking or not taking such action.
- Contracts. Unless otherwise expressly provided in this Agreement, references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document.
- Laws. References to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
- Captions. The captions and headings of this Agreement are for convenience of reference only, and shall not affect the construction of this Agreement.
- Independence of Provisions. If a conflict exists between the terms of this Agreement and those of any other Loan Document, this Agreement shall prevail; provided, however, that the parties acknowledge that this Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters, and that such limitations, tests and measurements are cumulative and must each be performed, except as expressly stated to the contrary in this Agreement, or unless the applicable provisions are inconsistent or cannot be simultaneously enforced or performed.
- Exhibits. All of the exhibits attached to this Agreement are incorporated herein by this reference.
- Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Pacific time (daylight or standard, as applicable).
- Accounting Principles.
- Accounting Terms. Unless the context otherwise clearly requires, all accounting terms not otherwise expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP, consistently applied.
- Fiscal Periods. References herein to "fiscal year" and "fiscal quarter" refer to such fiscal periods of Guarantor and its consolidated subsidiaries.
Notwithstanding any thing to the contrary contained herein, no property owned by any subsidiary of Borrower of Guarantor shall be counted as an Unencumbered Asset Pool Property unless such property is nominated as a Nominated Property pursuant toSection 4.1 andSection 4.2 and the subsidiary becomes a "Permitted Affiliate" hereunder by executing the Payment Guaranty and delivering the other documents described inSection 4.2(e) hereof.
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including legal fees and expenses and amounts payable underSections 2.10, 6.2, 11.3 and11.4) payable to Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including amounts payable underSections 2.10, 3.1, 3.3, 3.4, 6.2, 11.3 and11.4), ratably among them in proportion to the amounts described in this clauseSecond are payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clauseThird payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders in proportion to the respective amounts described in this clauseFourth held by them;
Fifth, to Administrative Agent for the account of the L/C Issuer to Cash Collateralize the aggregate undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrower or as otherwise required by law.
