EXHIBIT 10.8
PUBLISHED CUSIP NUMBER: 53117RAA7
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
LIBERTY PROPERTY LIMITED PARTNERSHIP
AND
LIBERTY PROPERTY TRUST
AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
AND
JPMORGAN CHASE BANK, N.A., AS SYNDICATION AGENT
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
SUNTRUST BANK, AND CITIZENS BANK OF PENNSYLVANIA,
AS DOCUMENTATION AGENTS
AND
PNC BANK, NATIONAL ASSOCIATION AND
WELLS FARGO BANK, NATIONAL ASSOCIATION,
AS MANAGING AGENTS
AND
THE LENDERS PARTY HERETO
AND
BANC OF AMERICA SECURITIES LLC AND
J.P. MORGAN SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
TABLE OF CONTENTS
Page
----
Section 1. DEFINITIONS OF RULES OF INTERPRETATION.............................................................. 1
Section 1.1. Definitions....................................................................... 1
Section 1.2. Rules of Interpretation........................................................... 25
Section 1.3. Exchange Rates; Currency Equivalents.............................................. 26
Section 1.4. Additional Alternative Currencies................................................. 26
Section 1.5. Change of Currency................................................................ 27
Section 1.6. Times of Day...................................................................... 28
Section 1.7. Letter of Credit Amounts.......................................................... 28
Section 2. REVOLVING CREDIT FACILITY........................................................................... 28
Section 2.1. Loans............................................................................. 28
Section 2.2. Changes in Total Commitment....................................................... 29
Section 2.3. The Notes......................................................................... 31
Section 2.4. Interest on Loans................................................................. 32
Section 2.5. Requests for Loans................................................................ 32
Section 2.6. Conversion and Continuation Options............................................... 33
Section 2.7. Funds for Loans................................................................... 34
Section 2.8. Swingline Loans................................................................... 35
Section 2.9. Letters of Credit................................................................. 37
Section 2.10. Competitive Bid Loans............................................................. 41
Section 2.11. Sharing Event..................................................................... 45
Section 3. REPAYMENT OF THE LOANS.............................................................................. 48
Section 3.1. Maturity.......................................................................... 48
Section 3.2. Mandatory Repayments of Loan...................................................... 48
Section 3.3. Optional Repayments of Loans...................................................... 48
Section 3.4. Currency Matters.................................................................. 50
Section 4. CERTAIN GENERAL PROVISIONS.......................................................................... 50
Section 4.1. Closing Fees...................................................................... 50
TABLE OF CONTENTS
(continued)
Page
----
Section 4.2. Other Fees........................................................................ 51
Section 4.3. Funds for Payments................................................................ 51
Section 4.4. Computations...................................................................... 52
Section 4.5. Additional Costs, Etc............................................................. 52
Section 4.6. Capital Adequacy.................................................................. 53
Section 4.7. Certificate....................................................................... 53
Section 4.8. Indemnity......................................................................... 53
Section 4.9. Default Interest and Late Charges................................................. 54
Section 4.10. Inability to Determine Eurocurrency Rate.......................................... 54
Section 4.11. Illegality........................................................................ 54
Section 4.12. Replacement of Lenders............................................................ 55
Section 4.13. Sharing of Payments by Lenders.................................................... 55
Section 4.14. Alternative Currencies............................................................ 56
Section 5. UNENCUMBERED PROPERTIES; NO LIMITATION ON RECOURSE.................................................. 57
Section 5.1. Unencumbered Properties and Unencumbered Development Properties................... 57
Section 5.2. Waivers by Requisite Lenders...................................................... 57
Section 5.3. Rejection of Unencumbered Properties and Unencumbered Development Properties...... 57
Section 5.4. Change in Circumstances........................................................... 58
Section 5.5. No Limitation on Recourse......................................................... 58
Section 5.6. Additional Guarantors............................................................. 58
Section 6. REPRESENTATIONS AND WARRANTIES...................................................................... 58
Section 6.1. Authority; Etc.................................................................... 58
Section 6.2. Governmental Approvals and Consents............................................... 60
Section 6.3. Title to Properties............................................................... 60
Section 6.4. Financial Statements.............................................................. 60
Section 6.5. No Material Changes, Etc.......................................................... 61
ii
TABLE OF CONTENTS
(continued)
Page
----
Section 6.6. Franchises, Patents, Copyrights, Etc.............................................. 61
Section 6.7. Litigation........................................................................ 61
Section 6.8. No Materially Adverse Contracts, Etc.............................................. 61
Section 6.9. Compliance With Other Instruments, Laws, Etc...................................... 62
Section 6.10. Tax Status........................................................................ 62
Section 6.11. Event of Default.................................................................. 62
Section 6.12. Investment Company Act............................................................ 62
Section 6.13. Absence of Financing Statements, Etc.............................................. 62
Section 6.14. Status of the Company............................................................. 62
Section 6.15. Certain Transactions.............................................................. 62
Section 6.16. Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans...................... 63
Section 6.17. Regulations U and X............................................................... 63
Section 6.18. Environmental Compliance.......................................................... 63
Section 6.19. Subsidiaries and Affiliates....................................................... 65
Section 6.20. Loan Documents.................................................................... 65
Section 6.21. Buildings on the Unencumbered Properties.......................................... 65
Section 6.22. Insurance......................................................................... 65
Section 6.23. Disclosure........................................................................ 65
Section 6.24. Solvency.......................................................................... 66
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER............................................................... 66
Section 7.1. Punctual Payment.................................................................. 66
Section 7.2. Maintenance of Office............................................................. 66
Section 7.3. Records and Accounts.............................................................. 66
Section 7.4. Financial Statements, Certificates and Information................................ 66
Section 7.5. Notices........................................................................... 68
Section 7.6. Existence; Maintenance of REIT Status; Maintenance of Properties.................. 70
Section 7.7. Insurance......................................................................... 71
iii
TABLE OF CONTENTS
(continued)
Page
----
Section 7.8. Taxes............................................................................. 71
Section 7.9. Inspection of Properties and Books................................................ 71
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits............................ 71
Section 7.11. Use of Proceeds................................................................... 72
Section 7.12. INTENTIONALLY OMITTED............................................................. 72
Section 7.13. Notices of Significant Transactions............................................... 72
Section 7.14. Further Assurances................................................................ 72
Section 7.15. Environmental Indemnification..................................................... 72
Section 7.16. Response Actions.................................................................. 73
Section 7.17. Employee Benefit Plans............................................................ 73
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.......................................................... 74
Section 8.1. Restrictions on Recourse IndebtedneSection ....................................... 74
Section 8.2. Restrictions on Investments....................................................... 74
Section 8.3. Merger, Consolidation and Other Fundamental Changes............................... 75
Section 8.4. Sale and Leaseback................................................................ 76
Section 8.5. Compliance with Environmental Laws................................................ 76
Section 8.6. Distributions..................................................................... 76
Section 8.7. Equity Repurchase Payments........................................................ 77
Section 8.8. Preferred Distributions........................................................... 77
Section 8.9. Liens............................................................................. 77
Section 8.10. Negative Pledge................................................................... 77
Section 8.11. Transactions with Affiliates...................................................... 77
Section 8.12. Change in Nature of BusineSection ................................................ 78
Section 8.13. Dispositions...................................................................... 78
Section 9. FINANCIAL COVENANTS OF THE BORROWER................................................................. 78
Section 9.1. Unsecured Debt to Value of All Unencumbered Properties............................ 78
Section 9.2. Total Debt to Total Asset Value................................................... 78
iv
TABLE OF CONTENTS
(continued)
Page
----
Section 9.3. Maximum Secured Debt.............................................................. 78
Section 9.4. Minimum Tangible Net Worth........................................................ 78
Section 9.5. Unencumbered Interest Coverage Ratio.............................................. 78
Section 9.6. Adjusted EBITDA to Fixed Charges.................................................. 79
Section 9.7. Pro Forma Calculations............................................................ 79
Section 9.8. Covenant Calculations............................................................. 79
Section 10. CONDITIONS TO EFFECTIVENESS........................................................................ 79
Section 10.1. Loan Documents.................................................................... 79
Section 10.2. Certified Copies of Organization Documents; Good Standing Certificates............ 80
Section 10.3. By-laws; Resolutions.............................................................. 80
Section 10.4. Incumbency Certificate; Authorized Signers........................................ 80
Section 10.5. Opinions of Counsel Concerning Organization and Loan Documents.................... 80
Section 10.6. Payment of Fees................................................................... 80
Section 10.7. Closing Certificate............................................................... 80
Section 10.8. Compliance Certificate............................................................ 81
Section 11. CONDITIONS TO ALL CREDIT ADVANCES.................................................................. 81
Section 11.1. Representations True; No Event of Default; Compliance Certificate................. 81
Section 11.2. No Legal Impediment............................................................... 81
Section 11.3. Governmental Regulation........................................................... 81
Section 11.4. Proceedings and Documents......................................................... 81
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC............................................................... 82
Section 12.1. Events of Default and Acceleration................................................ 82
Section 12.2. Termination of Commitments........................................................ 85
Section 12.3. Remedies.......................................................................... 85
Section 12.4. Distribution of Enforcement Proceeds.............................................. 85
Section 13. SETOFF............................................................................................. 86
v
TABLE OF CONTENTS
(continued)
Page
----
Section 14. THE AGENT.......................................................................................... 87
Section 14.1. Authorization..................................................................... 87
Section 14.2. Employees and Agents.............................................................. 87
Section 14.3. No Liability...................................................................... 87
Section 14.4. No Representations................................................................ 87
Section 14.5. Payment........................................................................... 88
Section 14.6. Holders of Notes.................................................................. 89
Section 14.7. Indemnity......................................................................... 89
Section 14.8. Agent as Lender................................................................... 89
Section 14.9. Resignation and Removal........................................................... 89
Section 14.10. Notification of Defaults and Events of Default and other Notices.................. 90
Section 14.11. Duties in the Case of Enforcement................................................. 90
Section 15. EXPENSES........................................................................................... 90
Section 16. INDEMNIFICATION.................................................................................... 91
Section 17. SURVIVAL OF COVENANTS, ETC......................................................................... 92
Section 18. ASSIGNMENT; PARTICIPATIONS; ETC.................................................................... 92
Section 18.1. Conditions to Assignment by Lenders............................................... 92
Section 18.2. Certain Representations and Warranties; Limitations; Covenants.................... 93
Section 18.3. Register.......................................................................... 93
Section 18.4. New Notes......................................................................... 94
Section 18.5. Participations.................................................................... 94
Section 18.6. Pledge by Lender.................................................................. 95
Section 18.7. No Assignment by Borrower......................................................... 95
Section 18.8. Disclosure........................................................................ 95
Section 18.9. Designated Banks.................................................................. 95
Section 19. NOTICES, ETC................................................................................... 96
Section 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE............................................. 98
vi
TABLE OF CONTENTS
(continued)
Page
----
Section 21. HEADINGS....................................................................................... 98
Section 22. COUNTERPARTS................................................................................... 98
Section 23. ENTIRE AGREEMENT............................................................................... 98
Section 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS................................................. 98
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC............................................................. 99
Section 26. SEVERABILITY................................................................................... 100
Section 27. ACKNOWLEDGMENTS................................................................................ 100
Section 28. NO WAIVER; CUMULATIVE REMEDIES................................................................. 100
Section 29. INTEREST RATE LIMITATION....................................................................... 100
Section 30. USA PATRIOT ACT NOTICE......................................................................... 101
Section 31. JUDGMENT CURRENCY.............................................................................. 101
Section 32. TRANSITIONAL ARRANGEMENTS...................................................................... 101
vii
Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Swingline Loan Request
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Letter of Credit Request
Exhibit G Form of Letter of Credit Application
Exhibit H Form of Competitive Bid Quote Request
Exhibit I Form of Invitation for Competitive Bid Quotes
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Acceptance of Competitive Bid Quote
Exhibit L Form of Joinder Agreement
Exhibit M Form of Guaranty Agreement
Exhibit N Form of Designated Bank Note
Exhibit O Form of Designation Agreement
Schedule 1 Lenders; Domestic and Eurocurrency Lending Offices
Schedule 1.1(a) Unencumbered Properties and Unencumbered Development Properties
Schedule 1.1(b) Eligible Ground Leases
Schedule 1.1(c) Mandatory Cost Schedule
Schedule 1.2 Commitments and Commitment Percentages
Schedule 1.3 Related Companies, Guarantors and Unconsolidated Entities
Schedule 1.4 Existing Letter of Credit
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.15 Insider Transactions
Schedule 6.16 Employee Benefit Plans
Schedule 6.18 Environmental Matters
Schedule 6.19 Company Assets
Schedule 6.21 Building Structural Defects, etc.
Schedule 6.22 Insurance
Schedule 8.2(d) Investments
viii
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is made as of the 22nd day of
December, 2005, by and among LIBERTY PROPERTY LIMITED PARTNERSHIP, a
Pennsylvania limited partnership (the "BORROWER"), LIBERTY PROPERTY TRUST, a
Maryland trust (the "COMPANY"), BANK OF AMERICA, N.A., a national banking
association ("BANK OF AMERICA"), the other lending institutions which are listed
from time to time on Schedule 1 (collectively, with Bank of America, the
"LENDERS"), JPMORGAN CHASE BANK, N.A., a national banking association ("JPMCB"),
as syndication agent, and BANK OF AMERICA, N.A., as administrative agent for
itself and such other lending institutions (the "AGENT").
WHEREAS, the Borrower, Bank of America (successor by merger to Fleet
National Bank, a national banking association), as administrative agent, and
certain other lenders are party to that certain Credit Agreement, dated as of
January 16, 2003, as amended by the First Amendment to Credit Agreement, dated
as of December 20, 2004 (as so amended, the "ORIGINAL CREDIT AGREEMENT"),
pursuant to which such lenders extended credit to the Borrower on the terms set
forth therein;
WHEREAS, the Borrower, Bank of America (successor by merger to Fleet
National Bank, a national banking association), as administrative agent, and
certain other lenders are party to that certain Multi-Currency Credit Agreement,
dated as of January 16, 2003, as amended by the First Amendment to
Multi-Currency Credit Agreement, dated as of December 20, 2004 (as so amended,
the "MULTI-CURRENCY CREDIT AGREEMENT", together with the Original Credit
Agreement, the "EXISTING CREDIT AGREEMENTS"), pursuant to which such lenders
extended credit to the Borrower on the terms set forth therein; and
WHEREAS, the Borrower, Bank of America, as administrative agent, and the
Lenders party hereto have agreed to enter into this Agreement to amend and
restate in their entireties the Existing Credit Agreements as set forth herein.
NOW, THEREFORE, to accomplish these purposes, the Agent, the Borrower, the
Company and the Lenders hereby agree as follows:
Section 1. DEFINITIONS OF RULES OF INTERPRETATION.
Section 1.1. Definitions. The following terms shall have the meanings set
forth in this Section l or elsewhere in the provisions of this Agreement
referred to below:
ACT. See Section 30.
ADDITIONAL TRANCHE A COMMITMENT. The portion (if any) of any Lender's
Tranche A Commitment which will become effective on the Commitment Increase Date
if the Total Commitment is increased pursuant to Section 2.2.
ADDITIONAL COMMITMENT LENDERS. Those Lenders which provide an Additional
Tranche A Commitment.
ADJUSTED EBITDA. EBITDA minus the Reserve Amount for all of the applicable
Real Estate Assets and adjusted to remove the effect of recognizing rental
income on a straight-line basis over the applicable lease terms.
ADJUSTED NET OPERATING INCOME. Net Operating Income minus the Reserve
Amount for all of the applicable Real Estate Assets and adjusted to remove the
effect of recognizing rental income on a straight-line basis over the applicable
lease terms.
AFFILIATED LENDERS. Any commercial bank or financial institution which is
(i) the parent corporation of any of the Lenders, (ii) a wholly-owned subsidiary
of any of the Lenders or (iii) a wholly-owned subsidiary of the parent
corporation of any of the Lenders.
AFFILIATE. With respect to any Person, another Person that directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the Person specified.
AGENT. Bank of America, N.A. acting in its capacity as administrative
agent for the Lenders or any successor agent.
AGENT'S HEAD OFFICE. The Agent's head office located at 901 Main Street,
Dallas, Texas 75202-3714, or at such other location as the Agent may designate
from time to time.
AGREEMENT. This Credit Agreement, including the Schedules and Exhibits
hereto as it may be amended, modified or supplemented from time to time.
AGREEMENT CURRENCY. See Section 31.
ALTERNATIVE CURRENCY. Each of Euro, Sterling or such other currency (other
than Dollars) as may be approved in accordance with Section 1.4, in each case,
so long as (a) such currency is readily available to all Lenders holding a
Tranche B Commitment and is freely transferable and freely convertible to
Dollars and (b) Reuters (or any successor thereto) reports BBA LIBOR for such
currency for the relevant Interest Period.
ALTERNATIVE CURRENCY EQUIVALENT. At any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Agent or the L/C Issuer, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of such Alternative Currency with
Dollars.
2
ALTERNATIVE CURRENCY LOAN. Any Loan denominated in an Alternative Currency
bearing interest calculated by reference to the Eurocurrency Rate.
APPLICABLE FACILITY FEE RATE. As of any date of determination, an annual
rate determined based on the ratings assigned to the Borrower's senior long-term
unsecured debt by the Ratings Agencies pursuant to the following table:
Facility Fee
S&P Rating Moody's Rating Fitch Rating Rate
- --------------------- --------------------- --------------------- ------------
Below BBB- or unrated Below Baa3 or unrated Below BBB- or unrated 0.25%
BBB- Baa3 BBB- 0.20%
BBB Baa2 BBB 0.15%
BBB+ Baa1 BBB+ 0.15%
A- or higher A3 or higher A- or higher 0.15%
If the Borrower maintains three ratings and those three ratings are not
equivalent, the Applicable Facility Fee Rate will be based on the lower of the
two highest ratings. If the Borrower maintains two ratings and those two ratings
are not equivalent, the Applicable Facility Fee Rate shall be based on the lower
of the two ratings. If the Borrower fails to maintain at least two ratings, the
Applicable Facility Fee Rate shall be based on an S&P Rating of below BBB-. Any
change in the Applicable Facility Fee Rate caused by a change in the Moody's
Rating, the S&P Rating or the Fitch Rating shall become effective on the first
day following the effective date of such change.
APPLICABLE MARGIN. As of any date of determination, the annual rate
determined based on the ratings assigned to the Borrower's senior long-term
unsecured debt by the Ratings Agencies pursuant to the following table for
Eurocurrency Rate Loans and Prime Rate Loans, respectively:
Eurocurrency Rate Prime Rate
S&P Rating Moody's Rating Fitch Rating Margin Margin
- ---------------------- --------------------- --------------------- ----------------- ----------
Below BBB- or unrated Below Baa3 or unrated Below BBB- or unrated 1.00% 0.25%
BBB- Baa3 BBB- 0.80% 0.000%
BBB Baa2 BBB 0.65% 0.000%
BBB+ Baa1 BBB+ 0.525% 0.000%
A- or higher A3 or higher A- or higher 0.475% 0.000%
If the Borrower maintains three ratings and those three ratings are not
equivalent, the Applicable Margin will be based on the lower of the two highest
ratings. If the Borrower maintains two ratings and those two ratings are not
equivalent, the Applicable Margin will be based on the lower of the two ratings.
If the Borrower fails to maintain at least two ratings, the Applicable Margin
shall be based on an S&P Rating of below BBB-. Any change in the Applicable
Margin caused by a change in the Moody's Rating, the S&P Rating or the Fitch
Rating shall become effective on the first day following the effective date of
such change.
3
APPLICABLE TIME. With respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such
Alternative Currency as may be determined by the Agent, to be necessary for
timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.
ARRANGER. Collectively, Banc of America Securities LLC and J.P. Morgan
Securities Inc., in their capacities as joint lead arrangers and joint
bookrunners, or any successors thereto.
ASSIGNMENT AND ACCEPTANCE. See Section 18.
BALANCE SHEET DATE. September 30, 2005.
BANK OF AMERICA. As defined in the preamble hereto.
BBA LIBOR. See definition of Eurocurrency Rate.
BORROWER. As defined in the preamble hereto.
BORROWER MATERIALS. See Section 7.5.
BORROWING DATE. The date on which any Loan is made or is to be made
(including, without limitation, the date on which any Mandatory Prime Rate Loan
is made), and the date on which any Loan is converted or continued in accordance
with Section 2.6.
BUILDINGS. The buildings, structures and other improvements now or
hereafter located on the Unencumbered Properties.
BUSINESS DAY. Any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact
closed in, the state where the Agent's Head Office with respect to Obligations
denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan,
means any such day on which dealings in deposits in Dollars are conducted
by and between banks in the London interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate
Loan, or any other dealings in Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;
(c) if such day relates to any interest rate settings as to a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant
currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
4
(d) if such day relates to any fundings, disbursements, settlements
and payments in a currency other than Dollars or Euro in respect of a
Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, or any other dealings in any currency other than Dollars or Euro to
be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any
such day on which banks are open for foreign exchange business in the
principal financial center of the country of such currency.
CAPITALIZED LEASES. Leases under which the Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the Borrower in accordance
with Generally Accepted Accounting Principles.
CERCLA. See Section 6.18.
CHANGE OF CONTROL. (a) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire (such right, an "OPTION
RIGHT"), whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 25% or more of the Voting Interests of the
Borrower on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right); or
(b) during any period of twelve (12) consecutive months, a majority of the
members of the board of directors or other equivalent governing body of the
Borrower cease to be composed of individuals (i) who were members of that board
or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of the
board of directors).
CODE. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
COMMITMENT. With respect to each Lender, sum of such Lender's Tranche A
Commitment and Tranche B Commitment. The Commitment of the Lender which is also
the Swingline Lender shall not be reduced by the amount of its Swingline
Commitment.
5
COMMITMENT INCREASE. An increase in the Tranche A Commitments such that
the Total Commitment is not more than $800,000,000 pursuant to Section 2.2(a).
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth from time to time on Schedule 1.2 hereto as such Lender's percentage of
the Tranche A Commitments, the Tranche B Commitments or the Total Commitment, as
applicable. If the Borrower exercises its option to increase the Tranche A
Commitments and the Total Commitment pursuant to Section 2.2(a), the Commitment
Percentages of the Lenders will change effective upon the Commitment Increase
Date.
COMMITMENT INCREASE DATE. See Section 2.2(a).
COMPANY. See preamble.
COMPETITIVE BID LOANS. Loans made by one or more Lenders pursuant to
Section 2.10.
COMPETITIVE BID LOAN ACCOUNT. See Section 2.10(a).
COMPETITIVE BID QUOTE REQUEST. See Section 2.10(c).
COMPETITIVE BID QUOTE. An offer to make a Competitive Bid Loan made by a
Lender in response to a Competitive Bid Quote Request.
COMPLIANCE CERTIFICATE. See Section 2.5(a).
CONTROL. 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.
CONVERSION REQUEST. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 2.6.
CREDIT EXPOSURE. With respect to each Lender as of any date of
determination, the sum, without duplication, of the following: (i) the
outstanding principal amount of all Loans advanced by such Lender under Section
2.1, (ii) the outstanding principal amount of all Mandatory Prime Rate Loans
advanced by such Lender pursuant to Section 2.8(b) or Section 2.9(d), (iii)
the outstanding principal amount of all participations purchased by such Lender
pursuant to Section 2.8(c), Section 2.9(d) or Section 2.11(b), (iv) the
outstanding principal amount of all Competitive Bid Loans advanced by such
Lender pursuant to Section 2.10(k), (v) such Lender's Commitment Percentage of
all outstanding Swingline Loans, except any Swingline Loan in which a
participation has been purchased therein by such Lender pursuant to Section
2.8(c) and (vi) such Lender's Commitment Percentage of the stated amount of each
Letter of Credit issued under Section 2.9 which has not expired or terminated
prior to the date of determination.
DEFAULT. See Section 12.1.
DELINQUENT LENDER. See Section 14.5(c).
6
DESIGNATED BANK. A special purpose corporation that (i) shall have become
a party to this Agreement pursuant to Section 18.9, and (ii) is not otherwise a
Lender.
DESIGNATED BANK NOTES. Promissory notes of the Borrower, substantially in
the form of Exhibit N hereto, evidencing the obligation of the Borrower to repay
Competitive Bid Loans made by Designated Banks, as the same may be amended,
supplemented, modified or restated from time to time, and "Designated Bank Note"
means any one of such promissory notes issued under Section 18.9.
DESIGNATING LENDER. See Section 18.9.
DESIGNATION AGREEMENT. A designation agreement, substantially in the form
of Exhibit O, entered into by a Lender and a Designated Bank and accepted by the
Agent.
DEVELOPMENT PROPERTY. A Real Estate Asset that is in the process of being
improved with one or more industrial or office buildings or other similar
commercial property, including "flex" and warehouse buildings, of a type
consistent with the Borrower's business strategy and is classified as
"development in progress" on the Borrower's consolidated balance sheet prepared
in accordance with Generally Accepted Accounting Principles. Any such Real
Estate Asset shall continue to be treated as a Development Property until the
earlier of (a) such Real Estate Asset achieving an occupancy rate of 90% (based
on net leasable area) or (b) the end of the twelfth (12th) month after
completion of construction (as evidenced by a certificate of occupancy).
DISTRIBUTION. The declaration or payment of any dividend or distribution
of cash or cash equivalents to the holders of common shares of beneficial
interest in the Company or the holders of common units of limited partnership
interest in the Borrower.
DOLLARS OR $. Dollars in lawful currency of the United States of America.
DOLLAR EQUIVALENT. At any time, (a) with respect to any amount denominated
in Dollars, such amount, and (b) with respect to any amount denominated in any
Alternative Currency, the equivalent amount thereof in Dollars as determined by
the Agent or the L/C Issuer, as the case may be, at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of Dollars with such Alternative Currency.
DOMESTIC LENDING OFFICE. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, located within the United States that will be making or maintaining Prime
Rate Loans.
DRAWING DATE. The date on which a draft under a Letter of Credit is paid
by the Agent.
EBITDA. For any period, the net income or loss of the Borrower and the
Related Companies, excluding gains or losses from sales of property,
write-ups/write-downs, forgiveness of indebtedness, other extraordinary items
and minority interests, plus (to the extent deducted in determining net income
or loss) interest expense, the amount recorded as income taxes on the books and
records of the Borrower or the Related Companies, depreciation and amortization,
all as defined and computed in accordance with Generally Accepted Accounting
Principles.
7
EFFECTIVE DATE. The date upon which this Agreement shall become effective
pursuant to Section 10. Unless the Agent notifies the Borrower and the Lenders
that some other date is the Effective Date, the Effective Date shall be the date
set forth on the first page of this Agreement.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank organized under the laws
of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with Generally Accepted Accounting
Principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), and having total assets in excess of $1,000,000,000, provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD; (d) the
central bank of any country which is a member of the OECD; (e) any other
assignee having a net worth of at least $100,000,000 that, in the reasonable
judgment of the Agent, is a reputable institutional investor with substantial
experience in lending and originating loans similar to the Facility, or in
purchasing, investing in or otherwise holding such loans; and (f) any Lender
Affiliate or a Related Fund of a Lender. For purposes hereof, "Lender Affiliate"
shall mean, (A) with respect to any Person that would otherwise be an Eligible
Assignee under clauses (a) - (e) above (a "QUALIFIED ASSIGNEE"), (i) an
affiliate of such Qualified Assignee or (ii) any Person that is engaged in
making, purchasing, holding or otherwise investing in bank loans or similar
extensions of credit in the ordinary course of its business and is administered
(including as placement agent therefore) or managed by a Qualified Assignee or
an affiliate of a Qualified Assignee and (B) with respect to a Lender that is a
fund which invests in bank loans or similar extensions of credit, any Related
Fund of such Lender. Further, for purposes hereof a "Related Fund" shall mean,
with respect to a Lender which is a fund which invests in bank loans or similar
extensions of credit, any other such fund managed by the same investment advisor
as such Lender or by an affiliate of such Lender or such advisor.
Notwithstanding anything to the contrary, the term Eligible Assignee shall
exclude any Person controlling, controlled by or under common control with, the
Borrower or the Company.
ELIGIBLE GROUND LEASE. A ground lease that (a) has a minimum remaining
term of twenty-five (25) years, including tenant controlled renewal options or
acceptable purchase options containing nominal or market based purchase prices,
as of any date of determination, and (b) has customary notice rights, default
cure rights, bankruptcy new lease rights and other customary provisions for the
benefit of a leasehold mortgagee or has equivalent protection for a leasehold
permanent mortgagee by a subordination to such leasehold permanent mortgagee of
the landlord's fee interest, and (c) is otherwise eligible for non-recourse
leasehold mortgage financing under customary prudent lending requirements. The
Eligible Ground Leases as of the date of this Agreement are listed on Schedule
1.1(b).
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3 (3) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
8
EMU. The economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992
and the Amsterdam Treaty of 1998.
EMU LEGISLATION. The legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.
ENVIRONMENTAL LAWS. See Section 6.18(a).
EQUITY REPURCHASE PAYMENTS. All payments of cash or cash equivalents by
Borrower or the Company as consideration for the repurchase, redemption or
retirement of any common shares of beneficial interest in the Company, or any
common units of limited partnership interest in Borrower.
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA AFFILIATE. Any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EURO OR EUR. Euro is the lawful currency of the Participating Member
States.
EUROCURRENCY LENDING OFFICE. Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of such
Lender, if any, that shall be making or maintaining Eurocurrency Rate Loans.
EUROCURRENCY PREPAYMENT FEE. See Section 3.3.
EUROCURRENCY RATE. For any Interest Period with respect to a Eurocurrency
Rate Loan, the rate per annum equal to the British Bankers Association LIBOR
Rate ("BBA LIBOR"), as published by Reuters (or other commercially available
source providing quotations of BBA LIBOR as designated by the Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason,
then the "Eurocurrency Rate" for such Interest Period shall be the rate per
annum determined by the Agent to be the rate at which deposits in the relevant
currency for delivery on the first day of such Interest Period in Same Day Funds
in the approximate amount of the Eurocurrency Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch (or other Bank of America
branch or Affiliate) to major banks in the London or other offshore interbank
market for such currency at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.
9
EUROCURRENCY RATE LOAN. Any LIBOR Rate Loan or Alternative Currency Loan.
EVENT OF DEFAULT. See Section 12.1.
EXISTING CREDIT AGREEMENTS. As defined in the recitals hereto.
EXISTING LETTERS OF CREDIT. See Section 2.9(a).
FACILITY. The unsecured revolving line of credit facility provided to
the Borrower pursuant to this Agreement initially in a maximum amount of
$600,000,000.
FEDERAL FUNDS RATE. For any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers 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
next 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 Bank of America on
such day on such transactions as determined by the Agent.
FEE LETTER. The letter agreement, dated November 15, 2005, among the
Borrower, the Company, the Agent, JPMCB and the Arranger.
FITCH RATING. The rating for Borrower's senior long-term unsecured debt
assigned by Fitch Ratings or its successors.
FIXED CHARGES. With respect to any fiscal period of the Borrower, an
amount equal to the sum of (i) Interest Expense, (ii) regularly scheduled
installments of principal payable with respect to Total Debt, (iii) current
maturities on Recourse Indebtedness not refinanced with Loans hereunder or other
replacement Indebtedness or otherwise repaid plus (iv) all dividend payments due
to the holders of any preferred shares of beneficial interest of the Company and
all distributions due to the holders of any limited partnership interests in the
Borrower other than limited partner distributions based on the per share
dividend paid on the common shares of beneficial interest of the Company.
FUNDS FROM OPERATIONS. With respect to any fiscal period of the Borrower,
means "funds from operations" as defined in accordance with resolutions adopted
by the board of Governors of the National Association of Real Estate Investment
Trusts as in effect from time to time.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Borrower
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in Generally
10
Accepted Accounting Principles) as to financial statements in which such
principles have been properly applied.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
GUARANTORS. The Company and the partnerships and corporations designated
as Guarantors on Schedule 1.3 hereto and any other Related Company which is at
least 85% owned by Borrower and which becomes a Guarantor pursuant to Section
5.6.
GUARANTY. The Guaranty of even date herewith in the form of Exhibit M
hereto from the Company and the other Guarantors to the Agent and the Lenders
pursuant to which the Company and the other Guarantors have guaranteed the
Obligations hereunder.
HAZARDOUS SUBSTANCES. See Section 6.18(b).
INDEBTEDNESection All obligations, contingent and otherwise (without
double-counting), of the following types: (a) the Obligations, (b) all debt and
similar monetary obligations for borrowed money, whether direct or indirect; (c)
all liabilities secured by any mortgage, pledge, negative pledge, security
interest, lien, negative lien, charge, or other encumbrance existing on property
owned or acquired subject thereto, whether or not the liability secured thereby
shall have been assumed; (d) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness or obligations
of others (including, without limitation, the indebtedness or obligations of
Unconsolidated Entities), including any obligation to supply funds to or in any
manner to invest in, directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer in respect of any letters of credit
and bankers' acceptances; (e) all obligations under Capitalized Leases; (f) all
obligations under so-called forward equity purchase contracts to the extent such
obligations are not payable solely in equity interests; (g) all uncollateralized
obligations in respect of Interest Rate Contracts, financial derivatives
contracts, and foreign exchange contracts; (h) all obligations in respect of any
so-called synthetic leases (i.e. a lease of property which is treated as an
operating lease under GAAP and as a loan for U.S. income tax purposes and (i)
such obligor's liabilities, contingent or otherwise of the type set forth in (a)
through (h) above, under any joint venture, limited liability company or
partnership agreement.
INTEREST EXPENSE. With respect to any fiscal period of the Borrower, an
amount equal to the sum of the following with respect to Total Debt: (i) total
interest expense, accrued in accordance with Generally Accepted Accounting
Principles plus (ii) all capitalized interest determined in accordance with
Generally Accepted Accounting Principles, plus (iii) the amortization of
deferred financing costs.
INTEREST PAYMENT DATE. As to any Loan (including any Swingline Loan or any
Competitive Bid Loan), the first Business Day of each calendar month and the
Maturity Date.
11
INTEREST PERIOD. With respect to each Loan, (a) initially, the period
commencing on the Borrowing Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request
(except that no Loan Request is required for Mandatory Prime Rate Loans and
except that Borrower shall have no options with respect to selecting Interest
Periods for Swingline Loans) (i) for any Prime Rate Loan, the day on which such
Prime Rate Loan is paid in full or converted to a LIBOR Rate Loan; and (ii) for
any Eurocurrency Rate Loan, 1, 2 or 3 months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(A) if any Interest Period would otherwise end on a day that is not
a Business Day, that Interest Period shall be extended to the next
succeeding Business Day;
(B) if the Borrower shall fail to give notice as provided in
Section 2.6, the Borrower shall be deemed to have requested a conversion
of the affected LIBOR Rate Loan to a Prime Rate Loan on the last day of
the then current Interest Period with respect thereto;
(C) any Interest Period 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
(E) the Borrower may not select any Interest Period relating to any
Eurocurrency Rate Loan that would extend beyond the Maturity Date.
INTEREST RATE CONTRACTS. Interest rate swap, cap or similar agreements
providing for interest rate protection.
INTERNAL REVENUE CODE. The Internal Revenue Code of 1986, as amended to
the date hereof and from time to time hereafter, any successor statute and any
regulations or guidelines promulgated thereunder.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, partnership or
membership interests or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of Investments outstanding at any
particular time: (a) the amount of any Investment represented by a guaranty or
secured by a letter of credit shall be taken at not less than the principal
amount of the obligations guaranteed or secured by such letter of credit and
still outstanding; (b) there shall be included as an Investment all interest
accrued with respect to Indebtedness constituting an Investment unless and until
such interest is paid; (c) there shall be deducted in respect of each such
Investment any amount received as a return of capital; (d) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (b) may be deducted when
paid;
12
and (e) there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
JPMCB. As defined in the preamble hereto.
JUDGMENT CURRENCY. See Section 31.
LEASES. Leases, licenses and agreements whether written or oral, relating
to the use or occupation of space in the Buildings on the Unencumbered
Properties and the Unencumbered Development Properties by persons other than the
owner thereof or any of its affiliates.
LENDERS. Bank of America, JPMCB and the other lending institutions listed
from time to time on Schedule 1 hereto and any other Person who becomes an
assignee of any rights of a Lender pursuant to Section 18 or a Person who
acquires all or substantially all of the stock or assets of a Lender. The L/C
Issuer and the Swingline Lender shall each be deemed a Lender, as applicable.
L/C ISSUER. Bank of America, in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
LETTER OF CREDIT. A letter of credit issued or deemed issued by the L/C
Issuer for the account of the Borrower pursuant to Section 2.9.
LETTER OF CREDIT REQUEST. See Section 2.9.
LIBOR RATE LOANS. Loans denominated in Dollars bearing interest calculated
by reference to the Eurocurrency Rate.
LIEN. Any lien, encumbrance, mortgage, deed of trust, pledge, restriction
or other security interest. If title to any Real Estate Asset is held by a
Subsidiary of Borrower or an Unconsolidated Entity then any pledge or assignment
of Borrower's stock, partnership interest, limited liability company interest or
other ownership interest in such Subsidiary or Unconsolidated Entity shall be
deemed to be a Lien on the Real Estate Assets owned by such Subsidiary or
Unconsolidated Entity.
LOAN DOCUMENTS. This Agreement, the Notes, the Guaranty and any and all
other agreements, documents and instruments now or hereafter evidencing,
securing or otherwise relating to the Loans.
LOAN REQUEST. See Section 2.5.
LOANS. All Loans (whether Tranche A Loans or Tranche B Loans) made or to
be made by one or more of the Lenders to the Borrower hereunder, including Loans
pursuant to Section 2.1 and Section 2.5, Swingline Loans made by Swingline
Lender pursuant to Section 2.8 and Mandatory Prime Rate Loans made pursuant to
Section 2.8 or Section 2.9, and Competitive Bid Loans made pursuant to
Section 2.10.
MANDATORY COST. With respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.1(c).
13
MANDATORY PRIME RATE LOANS. Loans made by the Lenders (without a Loan
Request) under the circumstances described in Section 2.8(b) or Section
2.9(d).
MATERIAL ADVERSE EFFECT. A material adverse effect on (i) the business,
Unencumbered Properties, Unencumbered Development Properties, results of
operations or financial condition of the Borrower and the Related Companies
taken as a whole or (ii) the ability of the Borrower, any Guarantor or the
Company to perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents or the remedies or
material rights of the Agent, the L/C Issuer or the Lenders thereunder.
MATURITY DATE. January 16, 2010 (or, if Borrower shall exercise its option
to extend such Maturity Date in accordance with Section 3.1, January 16, 2011),
or such earlier date on which the Loans shall become due and payable pursuant to
the terms hereof.
MAXIMUM CREDIT AMOUNT. The least of the following: (i) the maximum amount
of Outstanding Obligations without causing a violation of Section 9.1; (ii) the
maximum amount of Outstanding Obligations without causing a violation of Section
9.2; and (iii) the Total Commitment.
MAXIMUM RATE. See Section 29.
MOODY'S RATING. The rating for Borrower's senior long-term unsecured debt
assigned by Moody's Investors Services, Inc. or its successors.
MORTGAGES AND NOTES RECEIVABLE. Notes and notes receivable that are
secured by mortgages or other interests in real property and related assets.
MULTI-CURRENCY CREDIT AGREEMENT. As defined in the recitals hereto.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NET OFFERING PROCEEDS. All cash proceeds received after the Effective Date
by the Borrower or the Company as a result of the sale of common, preferred or
other classes of stock of the Company or the issuance of limited partnership
interests in the Borrower less customary costs and discounts of issuance paid by
Company or Borrower in connection therewith.
NET OPERATING INCOME. With respect to any fiscal period of the Borrower
and with respect to any one or more of the Real Estate Assets, the total rental
and other operating income from the operation of such Real Estate Assets after
deducting all expenses and other proper charges incurred by the Borrower in
connection with the operation of such Real Estate Assets during such fiscal
period, including, without limitation, property operating expenses, real estate
taxes and bad debt expenses, but before payment or provision for Fixed Charges,
income taxes, and depreciation, amortization, and other non-cash expenses, all
as determined in accordance with Generally Accepted Accounting Principles. With
respect to Real Estate Assets located outside of the United States, Net
Operating Income shall be converted from the currency in
14
which the applicable income and expenses are paid to Dollars using the currency
exchange rates in effect as of the end of the applicable fiscal period.
NOTES. See Section 2.3.
OBLIGATIONS. All indebtedness, obligations and liabilities of the
Borrower, any Guarantor or the Company to any of the Lenders and the Agent,
individually or collectively, under this Agreement or any of the other Loan
Documents or in respect of any of the Loans, the Letters of Credit or the Notes
or other instruments at any time evidencing any thereof, whether existing on the
date of this Agreement or arising or incurred hereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise.
ORIGINAL CREDIT AGREEMENT. As defined in the recitals hereto.
OUTSTANDING OBLIGATIONS. As of any date of determination, the sum of the
outstanding principal amount of the Tranche A Obligations, the Tranche A Letter
of Credit Obligations, the Tranche B Loans, and the Tranche B Obligations.
PARTICIPATING MEMBER STATE. Each state so described in any EMU
Legislation.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED ACQUISITION. The acquisition by Borrower or any Related Company
of Real Estate Assets which, in the aggregate, are primarily leased or intended
to be leased primarily for industrial or office purposes (including "flex" and
warehouse uses) or other similar commercial purposes of a type consistent with
the Borrower's business strategy, whether such acquisition is accomplished by a
direct purchase of such Real Estate Assets or by a merger or acquisition of
stock or other ownership interests or debt securities such that the owner of
such Real Estate becomes a Related Company.
PERMITTED DEVELOPMENTS. The construction of any new buildings or the
construction of additions expanding existing buildings or the rehabilitation of
the existing buildings (other than normal refurbishing and tenant fit up work in
previously completed buildings) relating to any Real Estate Assets of the
Borrower or any of the Related Companies. Each Permitted Development shall be
counted for purposes of Section 8.2 in the amount of the total projected cost
of such project from the time of commencement of the applicable construction
work until the earlier of (i) the date that 90% of such project is leased (but
not prior to the date that a final certificate of occupancy has been issued with
respect to such project) or (ii) the first anniversary of the issuance of such
certificate of occupancy.
PERMITTED LIENS. The following Liens, security interests and other
encumbrances:
(i) Liens to secure taxes, assessments and other governmental
charges;
15
(ii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations, and deposits with
utility companies and other similar deposits made in the ordinary
course of business;
(iii) Liens in respect of judgments or awards;
(iv) Liens of carriers, warehousemen, mechanics and
materialmen, and other Liens securing claims for labor, materials
and/or supplies;
(v) encumbrances consisting of easements, rights of way,
Leases, covenants, restrictions on the use of real property and
defects and irregularities in the title thereto; landlord's or
lessor's Liens and similar or minor Liens or encumbrances none of
which in the opinion of the Borrower interferes materially and
adversely with the ordinary conduct of the business of the Borrower,
and which matters neither (x) individually or in the aggregate have
a Material Adverse Effect nor (xx) individually or in the aggregate
have a materially adverse effect on the value of an Unencumbered
Property;
(vi) mortgages held by Borrower or a Guarantor securing
Indebtedness described in Section 8.1(d);
(vii) Liens on capital assets (not Real Estate) securing
Indebtedness for the purchase price of such capital assets otherwise
permitted by this Agreement; and;
(viii) Liens affecting an Unencumbered Property consisting of
mortgages, deeds of trust or other security interests granted by a
Guarantor to the Borrower or another Guarantor to secure
intercompany Indebtedness owing from such Guarantor to the Borrower
or such other Guarantor; provided that at all times such
Indebtedness and Liens shall be held by the Borrower or a Guarantor
and the Borrower's or such Guarantor's rights or interests therein
shall not be subject to any Liens except Permitted Liens.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
PLATFORM. See Section 7.5.
PREFERRED DISTRIBUTION. The declaration or payment of any dividend or
distribution of cash or cash equivalents to the holders of preferred shares of
beneficial interest in the Company or the holders of preferred units of limited
partnership interest of the Borrower.
PREPAYMENT DATE. See Section 3.3.
16
PRIME RATE. The variable per annum rate of interest designated from time
to time by the Agent as its Prime Rate. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate being charged to any
customer. In the event that the Agent does not announce a Prime Rate, the Prime
Rate shall be a per annum rate of interest equal to the Federal Funds Rate plus
one-half of one percent (0.50%).
PRIME RATE LOANS. Those Loans bearing interest calculated by reference to
the Prime Rate. All Prime Rate Loans shall be denominated in Dollars.
PROPERTIES. All Real Estate Assets, Real Estate, and all other assets,
including, without limitation, intangibles and personalty owned by the Borrower
or any of the Related Companies.
PUBLIC LENDERS. See Section 7.5.
RATING AGENCIES. Moody's Investors Services, Inc., Standard & Poor's, a
division of The McGraw Hill Companies, Inc. and Fitch Ratings, or their
respective successors.
REAL ESTATE. All real property at any time owned, leased (as lessee or
sublessee) or operated by the Borrower, any Guarantor, or any of the Related
Companies.
REAL ESTATE ASSETS. Those fixed and tangible properties consisting of
land, buildings and/or other improvements owned by the Borrower, by any
Guarantor or by any of the Related Companies at the relevant time of reference
thereto, including without limitation, the Unencumbered Properties and the
Unencumbered Development Properties, but excluding all leaseholds other than
leaseholds under ground leases which either have an unexpired term of at least
25 years or contain a purchase option for nominal consideration.
RECORD. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any
Lender with respect to any Loan.
RECOURSE INDEBTEDNESS. That portion of Total Debt which is Indebtedness
other than Indebtedness with respect to which recourse for payment is
contractually limited (except for customary exclusions) to specific assets
encumbered by a lien securing such Indebtedness.
REGISTER. See Section 18.3.
REIT. A domestic trust or corporation that qualifies as a real estate
investment trust under the provisions of Section 856, et seq. of the Internal
Revenue Code or any successor provisions.
RELATED BUSINESS. A business which is either (i) customarily
ancillary to the real estate business such as real estate consulting, brokerage
or management or (ii) provides telecommunication or other goods and services to
the tenants of the Properties.
RELATED COMPANIES. The entities listed and described on Schedule 1.3
hereto, or thereafter, any entity whose financial statements are consolidated or
combined with the Company's pursuant to Generally Accepted Accounting
principles, or any ERISA Affiliate.
17
RELATED PARTIES. With respect to any Person, such Person's Affiliates and
the partners, directors, officers, employees, agents and advisors of such Person
and of such Person's Affiliates.
RELEASE. See Section 6.18(c)(iii).
REQUISITE LENDERS. As of any date, the Lenders whose aggregate Commitments
constitute at least fifty-one percent (51%) of the Total Commitment, provided
that on and after the date that Commitments which constitute at least fifty-one
percent (51%) of the Total Commitment have terminated pursuant to Section 12.2,
Requisite Lenders shall mean the Lenders whose aggregate Credit Exposures
constitute at least fifty-one percent (51%) of the aggregate Credit Exposures of
all Lenders, and provided that the Commitments (or the Credit Exposures) of any
Delinquent Lenders shall be disregarded when determining the Requisite Lenders.
RESERVE AMOUNT. With respect to any Real Estate Assets or group of Real
Estate Assets, a normalized annual reserve for capital expenditures, replacement
reserves and leasing costs at the rate of $0.25 per year per square foot of
gross leasable area contained in all buildings on such Real Estate Assets. When
the Reserve Amount is used in computing an amount with respect to a fiscal
period which is shorter than a year, said amount shall be appropriately
prorated.
RESPONSIBLE OFFICER. With respect to the Company, any one of its Chairman,
President, Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, Treasurer, Executive Vice Presidents, Senior Vice Presidents or other
executive officers.
REVALUATION DATE. (a) With respect to any Loan, each of the following: (i)
each Borrowing Date of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) the last Business Day of each calendar month, and (iii) such
additional dates as the Agent shall determine; and (b) with respect to any
Letter of Credit, each of the following: (i) each date of issuance of a Letter
of Credit denominated in an Alternative Currency, (ii) each date of an amendment
of any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any payment by
the Agent under any Letter of Credit denominated in an Alternative Currency, and
(iv) such additional dates as the Agent shall determine.
S&P RATING. The rating for Borrower's senior long-term unsecured debt
assigned by Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc., or its successors.
SAME DAY FUNDS. (a) With respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments
in an Alternative Currency, same day or other funds as may be determined by the
Agent or the L/C Issuer, as the case may be, to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
SECURED INDEBTEDNESS. That portion of Total Debt which is secured by a
Lien on any Properties.
18
SHARING EVENT. The occurrence of (i) an Event of Default with respect to
the Borrower or the Company pursuant to Sections 12.1(g) or 12.1(h),
(ii) a termination of the Commitments pursuant to Section 12.2 or (iii) the
acceleration of the Loans pursuant to Section 12.1.
SOLVENT. When used with respect to any Person, means that at the time of
determination:
(i) the fair saleable value of its assets is in excess of the total amount
of its liabilities (including, without limitation, contingent liabilities); and
(ii) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become absolute and
matured; and
(iii) it is then able and expects to be able to pay its debts (including,
without limitation, contingent debts and other commitments) as they mature; and
(iv) it has capital sufficient to carry on its business as conducted and
as proposed to be conducted.
SPOT RATE. For a currency, the rate determined by the Agent or the L/C
Issuer, as applicable, to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date as of
which the foreign exchange computation is made; provided that the Agent or the
L/C Issuer may obtain such spot rate from another financial institution
designated by the Agent or the L/C Issuer if the Person acting in such capacity
does not have as of the date of determination a spot buying rate for any such
currency; and provided further that the L/C Issuer may use such spot rate quoted
on the date as of which the foreign exchange computation is made in the case of
any Letter of Credit denominated in an Alternative Currency.
STERLING and (POUND). The lawful currency of the United Kingdom.
SUBSIDIARY. Any corporation, association, trust, or other business entity
of which the designated parent or other controlling Person shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a majority
(by number of votes) of the outstanding Voting Interests.
SWINGLINE COMMITMENT. The Commitment of the Swingline Lender to make
Swingline Loans up to a maximum principal amount of $50,000,000 at any time
outstanding. The Swingline Commitment is a portion of, and not in addition to,
the Total Commitment.
SWINGLINE LENDER. Bank of America or any other Lender as a successor of
Swingline Lender.
SWINGLINE LOAN. Any Loan made by the Swingline Lender to the Borrower
pursuant to the Swingline Lender's Swingline Commitment.
19
SWINGLINE LOAN REQUEST. A Loan Request in the form of Exhibit D hereto
given by Borrower with respect to a Swingline Loan.
SWINGLINE NOTE. The Note from Borrower payable to the Swingline Lender In
the principal amount of $50,000,000 as evidence of the Swingline Loans.
TANGIBLE NET WORTH. Total Asset Value minus Total Liabilities determined
in accordance with Generally Accepted Accounting Principles.
TARGET DAY. Any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system
ceases to be operative, such other payment system (if any) determined by the
Agent to be a suitable replacement) is open for the settlement of payments in
Euro.
TOTAL ASSET VALUE. The sum, without duplication, of (i) the assets
classified as cash and cash equivalents on the consolidated balance sheet of the
Borrower, plus (ii) the amount determined by taking (a) Adjusted EBITDA for all
Real Estate Assets owned at least one complete fiscal quarter (other than
Development Properties); (b) then multiplying by four (4); and (c) then dividing
such product by 0.085; plus (iii) the value (at cost) of all Real Estate Assets
acquired within the immediately preceding fiscal quarter, plus (iv) the lower of
(x) cost or (y) book value of all Development Properties, plus (v) the book
value of all notes receivable held by the Borrower and its Subsidiaries, all as
shown on the consolidated balance sheet of the Borrower prepared in accordance
with Generally Accepted Accounting Principles as of the end of the most recent
fiscal quarter for which financial statements have been provided pursuant to
Section 7.4, plus (vi) the book value of Undeveloped Land, as shown on such
consolidated balance sheet. Adjusted EBITDA used to compute Total Asset Value
will be computed on a pro forma basis as though any Real Estate Assets acquired
or disposed of since the first day of the applicable fiscal quarter had been
acquired or disposed of prior to the first day of such fiscal quarter.
TOTAL COMMITMENT. The aggregate principal amount of the Commitments of all
of the Lenders, as in effect from time to time, the maximum amount of which
shall be $600,000,000, as increased from time to time pursuant to Section
2.2(a) or as decreased from time to time pursuant to Section 2.2(c).
TOTAL DEBT. The sum of the following (without duplication): (i) all
Indebtedness of the Borrower and the Related Companies included in the
liabilities portion of the Borrower's balance sheet prepared in accordance with
Generally Accepted Accounting Principles as of the end of the most recent fiscal
quarter for which financial statements have been provided pursuant to Section
7.4, including, without limitation, the Indebtedness presently shown on the
balance sheet line items designated as "mortgage loans", "unsecured notes" and
"credit facility" adjusted to reflect any such Indebtedness incurred or repaid
between the end of such fiscal quarter and the date of determination, (ii) plus
all Indebtedness of the Borrower and the Related Companies of a type which is
not included on the balance sheet described in clause (i) of this definition,
and (iii) to the extent not already included in this definition, the amount of
Indebtedness to be included in Total Debt pursuant to Section 9.8.
20
TOTAL GAAP ASSETS. The aggregate book value of all assets of the Borrower
and the Related Companies consolidated and determined in accordance with
Generally Accepted Accounting Principles.
TOTAL LIABILITIES. The sum of the following (without duplication): (i) all
liabilities of the Borrower and the Related Companies consolidated and
determined in accordance with Generally Accepted Accounting Principles, (ii) all
Indebtedness of the Borrower and the Related Companies whether or not so
classified, including, without limitation, all outstanding Loans under this
Agreement, and (iii) the balance available for drawing under letters of credit
issued for the account of the Borrower or any of the Related Companies.
TRANCHE A AVAILABILITY. At any time, the amount by which the Tranche A
Commitments at such time exceeds the sum of the Tranche A Obligations and the
Tranche A Letter of Credit Obligations at such time.
TRANCHE A COMMITMENT. With respect to each Lender, the amount set forth
from time to time on Schedule 1.2 hereto as the amount of such Lender's
commitment to make Tranche A Loans hereunder to the Borrower and to participate
in Swingline Loans and Tranche A Letters of Credit hereunder, as adjusted from
time to time as a result of any Commitment Increase pursuant to Section 2.2(a),
any reduction in Commitments pursuant to Section 2.2(c), or any assignment
pursuant to Section 18, and Tranche A Commitments shall be the aggregate
principal amount of the Tranche A Commitment of all of the Lenders, the maximum
amount of which shall be $550,000,000, as increased from time to time pursuant
to Section 2.2(a) or as decreased from time to time pursuant to Section
2.2(c).
TRANCHE A CREDIT EXPOSURE. With respect to each Lender as of any date of
determination, the sum, without duplication, of the following: (i) the
outstanding principal amount of all Tranche A Loans advanced by such Lender
under Section 2.1, Section 2.8(b), and Section 2.9(d), (ii) the outstanding
principal amount of all participations purchased by such Lender pursuant to
Section 2.8(c), Section 2.9(d) or Section 2.11(b), (iii) such Lender's
Commitment Percentage of all outstanding Swingline Loans which are deemed to use
the Tranche A Commitments, except any Swingline Loan in which a participation
has been purchased therein by such Lender pursuant to Section 2.8(c) and (vi)
such Lender's Commitment Percentage of the stated amount of each Tranche A
Letter of Credit issued under Section 2.9 which has not expired or terminated
prior to the date of determination.
TRANCHE A LETTER OF CREDIT. Any standby Letter of Credit issued at the
request of the Borrower and for the account of the Borrower against the Tranche
A Commitments in accordance with Section 2.8.
TRANCHE A LETTER OF CREDIT OBLIGATIONS. As of any date of determination,
the maximum amount which the L/C Issuer may be required to pay on such date or
any future time under Tranche A Letters of Credit outstanding as of such date.
TRANCHE A LOANS. Loans made by the Lenders pursuant to Section Section
2.1, 2.8, and 2.9 to the extent that such Loans are deemed, pursuant to Section
Section 2.1, 2.8, and 2.9, as applicable, to be a use of the Tranche A
Commitments.
21
TRANCHE A OBLIGATIONS. At any time, the outstanding principal amount of
the Tranche A Loans at such time, plus the portion (if any) of the outstanding
principal amount of the Competitive Bid Loans that are deemed, pursuant to
Section 2.10, to be a use of the Tranche A Commitments.
TRANCHE B AVAILABILITY. At any time, the amount by which the Tranche B
Commitments at such time exceeds the sum of the Tranche B Obligations and the
Tranche B Letter of Credit Obligations at such time.
TRANCHE B COMMITMENT. With respect to each Lender, the amount set forth
from time to time on Schedule 1.2 hereto as the amount of such Lender's
commitment to make Tranche B Loans hereunder to the Borrower and to participate
in Swingline Loans and Tranche B Letters of Credit hereunder, as adjusted from
time to time as a result of any reduction in Commitments pursuant to Section
2.2(c) or any assignment pursuant to Section 18, and Tranche B Commitments
shall be the aggregate principal amount of the Tranche B Commitment of all of
the Lenders, the maximum amount of which shall be $50,000,000, as decreased from
time to time pursuant to Section 2.2(c).
TRANCHE B CREDIT EXPOSURE. With respect to each Lender as of any date of
determination, the sum, without duplication, of the following: (i) the
outstanding principal amount of all Tranche B Loans advanced by such Lender
under Section 2.1, Section 2.8(b), and Section 2.9(d), (ii) the outstanding
principal amount of all participations purchased by such Lender pursuant to
Section 2.8(c), Section 2.9(d) or Section 2.11(b), (iii) such Lender's
Commitment Percentage of all outstanding Swingline Loans which are deemed to use
the Tranche B Commitments, except any Swingline Loan in which a participation
has been purchased therein by such Lender pursuant to Section 2.8(c) and (vi)
such Lender's Commitment Percentage of the stated amount of each Tranche B
Letter of Credit issued under Section 2.9 which has not expired or terminated
prior to the date of determination.
TRANCHE B LETTER OF CREDIT. Any standby Letter of Credit issued at the
request of the Borrower and for the account of the Borrower against the Tranche
B Commitments in accordance with Section 2.8.
TRANCHE B LETTER OF CREDIT OBLIGATIONS. As of any date of determination,
the maximum amount which the L/C Issuer may be required to pay on such date or
any future time under Tranche B Letters of Credit outstanding as of such date.
TRANCHE B LOANS. Loans made by the Lenders pursuant to Section Section
2.1, 2.8, and 2.9 to the extent that such Loans are deemed, pursuant to Section
Section 2.1, 2.8, and 2.9, as applicable, to be a use of the Tranche B
Commitments.
TRANCHE B OBLIGATIONS. At any time, the outstanding principal amount of
the Tranche B Loans at such time plus the portion (if any) of the outstanding
principal amount of the Competitive Bid Loans that are deemed, pursuant to
Section 2.10, to be a use of the Tranche B Commitments.
TYPE. As to any Loan its nature as a Prime Rate Loan or a Eurocurrency
Rate Loan.
22
UNCONSOLIDATED ENTITY. As of any date, any Person in whom the Borrower,
the Company or any Related Company holds an Investment, and whose financial
results would not be consolidated under Generally Accepted Accounting Principles
with the financial statements of the Borrower, if such statements were prepared
as of such date. Unconsolidated Entities existing on the date hereof are set
forth in Schedule 1.3.
UNDEVELOPED LAND. Any Real Estate consisting of raw land which is
unimproved by buildings and does not generate any income.
UNENCUMBERED DEVELOPMENT PROPERTY. A Real Estate Asset which at the date
of determination (i)(a) is 100% owned in fee or ground leased under an Eligible
Ground Lease by Borrower or one of the Guarantors or (b) the Borrower, directly
or indirectly, owns at least 51% of the Voting Interests of such Real Estate
Asset and has the sole authority to make decisions regarding any sales or
financings related to such Real Estate Asset, (ii) is a Development Property;
(iii) is not directly or indirectly subject to any Lien (other than Permitted
Liens) or to any negative pledge agreement or other agreement that prohibits the
creation of any Lien thereon; (iv) is a Real Estate Asset with respect to which
each of the representations contained in Section 6.18 and Section 6.21 hereof
is true and accurate as of such date of determination; (v) may be legally
conveyed separately from any other Real Estate without the need to obtain any
subdivision approval, zoning variance or other consent or approval from any
unrelated Person, and (vi) is located in the United States, Canada or Europe.
Each Real Estate Asset which satisfies the conditions set forth in this
definition or with respect to which the Requisite Lenders have granted the
necessary waivers pursuant to Section 5.2 shall be deemed to be an Unencumbered
Development Property only during such periods of time as Borrower has included
the same on the list of Unencumbered Development Properties attached to the most
recent Compliance Certificate delivered hereunder, and shall cease to be
considered an Unencumbered Development Property on the earlier of (i) the date
that 90% of such project is leased (but not prior to the date that a final
certificate of occupancy has been issued with respect to such project) or (ii)
the first anniversary of the issuance of such certificate of occupancy.
Thereafter, such Real Estate Asset may be an Unencumbered Property, assuming
that it meets the requirements set forth in the definition of an Unencumbered
Property. At no time shall the same Real Estate Asset be counted as both an
Unencumbered Property and an Unencumbered Development Property.
UNENCUMBERED DEVELOPMENT PROPERTY VALUE. With respect to any Unencumbered
Development Property at any time, the lower of (a) cost or (b) book value of
such Unencumbered Development Property in accordance with Generally Accepted
Accounting Principles.
UNENCUMBERED PROPERTY. A Real Estate Asset which at the date of
determination, (i)(a) is 100% owned in fee or ground leased under an Eligible
Ground Lease by Borrower or one of the Guarantors or (b) the Borrower, directly
or indirectly, owns at least 51% of the Voting Interests of such Real Estate
Asset and has the sole authority to make decisions regarding any sales or
financings related to such Real Estate Asset, (ii) is improved with one or more
completed industrial or office buildings (including "flex" and warehouse
buildings) or other similar commercial property of a type consistent with the
Borrower's business strategy; (iii) is not directly or indirectly subject to any
Lien (other than Permitted Liens) or to any negative
23
pledge agreement or other agreement that prohibits the creation of any Lien
thereon; (iv) is a Real Estate Asset with respect to which each of the
representations contained in Section 6.18 and Section 6.21 hereof is true and
accurate as of such date of determination; (v) may be legally conveyed
separately from any other Real Estate without the need to obtain any subdivision
approval, zoning variance or other consent or approval from an unrelated Person;
(vi) is located in the United States, Canada or Europe, and (vii) to the extent
requested by the Agent, the Borrower has delivered to the Agent historical
operating and leasing information relating to such Unencumbered Property, in
form and substance reasonably satisfactory to the Agent. Each Real Estate Asset
which satisfies the conditions set forth in this definition or with respect to
which the Requisite Lenders have granted the necessary waivers pursuant to
Section 5.2 shall be deemed to be an Unencumbered Property only during such
periods of time as Borrower has included the same on the list of Unencumbered
Properties attached to the most recent Compliance Certificate delivered
hereunder.
UNENCUMBERED PROPERTY VALUE. With respect to any Unencumbered Property at
any time (other than an Unencumbered Development Property or an Unencumbered
Property acquired within the immediately preceding fiscal quarter), an amount
computed as follows: (a) the Adjusted Net Operating Income of such Unencumbered
Property for the most recent fiscal quarter of the Borrower for which financial
statements have been delivered to the Agent pursuant to Section 7.4; (b) then
multiplying by four (4); and (c) dividing such difference by 0.085.
UNSECURED INDEBTEDNESS. That portion of Total Debt which is not secured by
a Lien (other than Permitted Liens) on any Properties including, without
limitation, the Outstanding Obligations, the Unsecured Term Notes and any
Indebtedness evidenced by any bonds, debentures, notes or other debt securities
presently outstanding or which may be hereafter issued by Borrower or by the
Company. Unsecured Indebtedness shall not include accrued ordinary operating
expenses payable on a current basis.
UNSECURED TERM NOTES. All notes from time to time outstanding under the
Indenture dated August 14, 1997 among Borrower, the Company and J.P. Morgan
Trust Company, N.A. (as successor trustee), as Trustee, as amended and
supplemented through the date hereof and as the same may be further amended or
supplemented from time to time.
VALUE OF ALL UNENCUMBERED PROPERTIES. When determined as of the end of a
fiscal quarter, the sum, without duplication of the following items: (a) the
aggregate Unencumbered Property Value of all Unencumbered Properties; plus (b)
the aggregate Unencumbered Development Property Value of all of the Unencumbered
Development Properties; plus (c) one hundred percent (100%) of the purchase
price for any Unencumbered Property acquired within the immediately preceding
fiscal quarter. When determined as of a date which is during a fiscal quarter
based on an updated list of Unencumbered Properties and Unencumbered Development
Properties attached to the applicable Compliance Certificate as provided in the
last sentence of Section 5.1 or in Section 7.13, the Value of All Unencumbered
Properties most recently computed as provided in the preceding sentence of this
definition will be adjusted by subtracting the contribution to Value of All
Unencumbered Properties made by Unencumbered Properties and Unencumbered
Development Properties which have been deleted from such list and by adding the
contribution to Value of All Unencumbered Properties made by the Unencumbered
Properties and
24
Unencumbered Development Properties which have been added to such list. To the
extent (i) the aggregate contribution to Value of All Unencumbered Properties
made by the Unencumbered Properties and Unencumbered Development Properties
located in Europe exceeds five percent (5%) of the Value of All Unencumbered
Properties, the amount in excess of said 5% level will be excluded when
computing the Value of All Unencumbered Properties, (ii) the aggregate
Unencumbered Development Property Value of all of the Unencumbered Development
Properties exceeds fifteen percent (15%) of the Value of All Unencumbered
Properties, the amount in excess of said level will be excluded when computing
the Value of All Unencumbered Properties, (iii) contribution to Value of All
Unencumbered Properties made by any single Unencumbered Property or Unencumbered
Development Property exceeds fifteen percent (15%) of the Value of All
Unencumbered Properties, the amount in excess of said level will be excluded
when computing the Value of All Unencumbered Properties and (iv) the aggregate
contribution to Value of all Unencumbered Properties made by Unencumbered
Properties and Unencumbered Development Properties that are not wholly-owned by
the Borrower or one of its wholly-owned Subsidiaries exceeds 10% of the Value of
All Unencumbered Properties, the amount in excess of said level will be excluded
when computing the Value of All Unencumbered Properties.
VOTING INTERESTS. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
Section 1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by Generally Accepted Accounting Principles applied on a
consistent basis by the accounting entity to which they refer and, except
as otherwise expressly stated, all use of accounting terms with respect to
the Borrower shall reflect the consolidation of the financial statements
of Borrower and the Related Companies.
(f) If at any time any change in Generally Accepted Accounting
Principles would affect the computation of any financial ratio or
requirement set forth in any Loan
25
Document, and either the Borrower or the Requisite Lenders shall so
request, the Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in Generally Accepted Accounting
Principles (subject to the approval of the Requisite Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with Generally Accepted Accounting Principles prior
to such change therein and (ii) the Borrower shall provide to the Agent
and the Lenders financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in Generally Accepted
Accounting Principles.
(g) The words "include", "includes" and "including" are not
limiting.
(h) All terms not specifically defined herein or by Generally
Accepted Accounting Principles, which terms are defined in the Uniform
Commercial Code as in effect in Massachusetts, have the meanings assigned
to them therein.
(i) Reference to a particular "Section " refers to that section of
this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
(k) The words "so long as any Loan or Note is outstanding" shall
mean so long as such Loan or Note is not indefeasibly paid in full in
cash.
Section 1.3. Exchange Rates; Currency Equivalents. (a) The Agent or the
L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation
Date to be used for calculating Dollar Equivalent amounts of any Loans or
Letters of Credit and Outstanding Obligations denominated in Alternative
Currencies. Such Spot Rates shall become effective as of such Revaluation Date
and shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by the Borrower, the Company or the
Guarantors hereunder or calculating financial covenants hereunder or except as
otherwise provided herein, the applicable amount of any currency (other than
Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent
amount as so determined by the Agent or the L/C Issuer, as applicable.
(b) Wherever in this Agreement in connection with the making,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or the
issuance, amendment or extension of a Letter of Credit, an amount, such as
a required minimum or multiple amount, is expressed in Dollars, but such
Eurocurrency Rate Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative
Currency Equivalent of such Dollar amount (rounded to the nearest unit of
such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the Agent or the L/C Issuer, as the case may be.
26
Section 1.4. Additional Alternative Currencies. (a) The Borrower may from
time to time request that Eurocurrency Rate Loans be made and/or Letters of
Credit be issued in a currency other than those specifically listed in the
definition of "Alternative Currency;" provided that such requested currency is a
lawful currency (other than Dollars) and meets the requirements set forth in the
definition of "Alternative Currency". In the case of any such request with
respect to the making of Eurocurrency Rate Loans, such request shall be subject
to the approval of the Agent and the Lenders; and in the case of any such
request with respect to the issuance of Letters of Credit, such request shall be
subject to the approval of the Agent and the L/C Issuer.
(b) Any such request shall be made to the Agent not later than 11:00
a.m., 20 Business Days prior to the date of the desired Loan or Letters of
Credit (or such other time or date as may be agreed by the Agent and, in
the case of any such request pertaining to Letters of Credit, the L/C
Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Agent shall promptly notify
each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Agent shall promptly notify the L/C Issuer thereof.
Each Lender (in the case of any such request pertaining to Eurocurrency
Rate Loans) or the L/C Issuer (in the case of a request pertaining to
Letters of Credit) shall notify the Agent, not later than 11:00 a.m., ten
Business Days after receipt of such request whether it consents, in its
sole discretion, to the making of Eurocurrency Rate Loans or the issuance
of Letters of Credit, as the case may be, in such requested currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may be,
to respond to such request within the time period specified in the
preceding sentence shall be deemed to be a refusal by such Lender or the
L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be
made or Letters of Credit to be issued in such requested currency. If the
Agent and all the Lenders consent to making Eurocurrency Rate Loans in
such requested currency, the Agent shall so notify the Borrower and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any borrowings of Eurocurrency Rate
Loans; and if the Agent and the L/C Issuer consent to the issuance of
Letters of Credit in such requested currency, the Agent shall so notify
the Borrower and such currency shall thereupon be deemed for all purposes
to be an Alternative Currency hereunder for purposes of any Letter of
Credit issuances. If the Agent shall fail to obtain consent to any request
for an additional currency under this Section 1.4, the Agent shall
promptly so notify the Borrower.
Section 1.5. Change of Currency. (a) Each obligation of the Borrower to
make a payment denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). If, in relation to the currency of any
such member state, the basis of accrual of interest expressed in this Agreement
in respect of that currency shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such convention
or practice with effect from the date on which such member state adopts the Euro
as its lawful currency; provided that if any Loan in the currency of such
27
member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Loan, at the end of the then current
Interest Period.
(b) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any
member state of the European Union and any relevant market conventions or
practices relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such
reasonable changes of construction as the Agent may from time to time
specify to be appropriate to reflect a change in currency of any other
country and any relevant market conventions or practices relating to the
change in currency.
Section 1.6. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
Section 1.7. Letter of Credit Amounts. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, that with respect to any Letter of Credit that, by its terms
or the terms of any other document related thereto, provides for one or more
automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
Section 2. REVOLVING CREDIT FACILITY.
Section 2.1. Loans.
(a) Commitment to Lend Tranche A Loans; Limitation on Commitments.
Subject to the provisions of Section 2.5 and the other terms and
conditions set forth in this Agreement, each of the Lenders with a Tranche
A Commitment severally (and not jointly) agrees to lend to the Borrower
and the Borrower may borrow, repay, and reborrow in Dollars from time to
time between the Effective Date and the Maturity Date upon notice by the
Borrower to the Agent given and approved by the Agent in accordance with
Section 2.5, such sums as are requested by the Borrower up to a maximum
aggregate principal amount (after giving effect to all amounts requested)
such that such Lender's Tranche A Credit Exposure (excluding the
Competitive Bid Loans owed to such Lender) does not exceed such Lender's
Tranche A Commitment, provided that (1) the Outstanding Obligations (after
giving effect to all amounts requested) shall not at any time exceed the
Maximum Credit Amount and (2) the sum of the Tranche A Obligations (after
giving effect to all amounts requested) and the Tranche A Letter of Credit
Obligations shall not exceed the Tranche A Commitments. The Tranche A
Loans under this Section 2.1 shall be made pro rata in accordance with
each Lender's Commitment Percentage for Tranche A Loans and the Lenders
shall at all times immediately adjust inter se any inconsistency between
each Lender's outstanding principal amount thereof and each Lender's
Tranche A Commitment. Each request for a Tranche A Loan
28
hereunder shall constitute a representation and warranty by the Borrower
that the conditions set forth in Section 10 or Section 11 (whichever is
applicable) have been satisfied on the date of such request and will be
satisfied on the proposed Borrowing Date of the requested Tranche A Loan,
provided that the making of such representation and warranty by Borrower
shall not limit the right of any Lender not to lend upon a determination
by the Requisite Lenders that such conditions have not been satisfied.
(b) Commitment to Lend Tranche B Loans; Limitation on Commitments.
Subject to the provisions of Section 2.5 and the other terms and
conditions set forth in this Agreement, each of the Lenders with a Tranche
B Commitment severally (and not jointly) agrees to lend to the Borrower
and the Borrower may borrow, repay, and reborrow in Dollars or any
Alternative Currency from time to time between the Effective Date and the
Maturity Date upon notice by the Borrower to the Agent given and approved
by the Agent in accordance with Section 2.5, such sums as are requested
by the Borrower up to a maximum aggregate principal amount (after giving
effect to all amounts requested) such that the Dollar Equivalent of such
Lender's Tranche B Credit Exposure (excluding the Competitive Bid Loans
owed to such Lender) does not exceed such Lender's Tranche B Commitment,
provided that the Dollar Equivalent of (1) the Outstanding Obligations
(after giving effect to all amounts requested) shall not at any time
exceed the Maximum Credit Amount and (2) the sum of the Tranche B
Obligations and the Tranche B Letter of Credit Obligations shall not
exceed the Tranche B Commitments. The Tranche B Loans under this Section
2.1 shall be made pro rata in accordance with each Lender's Commitment
Percentage for Tranche B Loans and the Lenders shall at all times
immediately adjust inter se any inconsistency between each Lender's
outstanding principal amount thereof and each Lender's Tranche B
Commitment. Each request for a Tranche B Loan hereunder shall constitute a
representation and warranty by the Borrower that the conditions set forth
in Section 10 or Section 11 (whichever is applicable) have been
satisfied on the date of such request and will be satisfied on the
proposed Borrowing Date of the requested Tranche B Loan, provided that the
making of such representation and warranty by Borrower shall not limit the
right of any Lender not to lend upon a determination by the Requisite
Lenders that such conditions have not been satisfied.
(c) Use of Tranche A Commitments and Tranche B Commitments.
Notwithstanding any other provision of this Agreement to the contrary, (a)
each Loan denominated in Dollars (whether bearing interest at the
Eurocurrency Rate or the Prime Rate) shall be a Tranche A Loan and shall
be deemed to use the Tranche A Commitments, unless the Tranche A
Commitments have been fully used and are not available at such time for
such Loan, in which case such Loan denominated in Dollars shall be a
Tranche B Loan, if such Tranche B Commitments are available, and shall be
deemed to use the Tranche B Commitments and (b) each Loan denominated in
an Alternative Currency shall be a Tranche B Loan, if such Tranche B
Commitments are available, and shall be deemed to use the Tranche B
Commitments.
Section 2.2. Changes in Total Commitment.
29
(a) Provided that no Default or Event of Default has occurred and is
continuing, the Borrower shall have the option on up to four (4) occasions
during the term of this Agreement to request an increase in the Tranche A
Commitments and the Total Commitment by an amount not less than
$25,000,000 per request and $200,000,000 in the aggregate (to not more
than $750,000,000 and $800,000,000, respectively), by written notice to
the Agent. Upon receipt of such notice, the Agent shall consult with
Arranger and shall notify the Borrower of the amount of the arrangement
fees to be paid to Arranger and the upfront fees to be paid to any Lenders
who provide an Additional Tranche A Commitment in connection with such
increase in the Tranche A Commitment and the Total Commitment. If the
Borrower agrees to pay the arrangement and upfront fees so determined,
then the Agent shall send a notice to all Lenders with a Commitment (the
"ADDITIONAL COMMITMENT REQUEST NOTICE") informing them of the Borrower's
request to increase the Tranche A Commitment and the Total Commitment and
of the upfront fees to be paid with respect thereto. Each Lender who
desires to provide an Additional Tranche A Commitment upon such terms
shall provide the Agent with a written commitment letter specifying the
amount of the Additional Tranche A Commitment by which it is willing to
provide prior to such deadline as may be specified in the Additional
Commitment Request Notice. If the requested increase is oversubscribed
then the Agent and the Arranger shall allocate the Commitment Increase
among the Lenders who provide such commitment letters on such basis as the
Agent and the Arranger shall determine in their sole discretion. If the
Additional Tranche A Commitments so provided are not sufficient to provide
the full amount of the Commitment Increase requested by the Borrower, then
the Agent may, but shall not be obligated to, invite one or more Eligible
Assignees to become a Lender and provide an Additional Tranche A
Commitment. The Agent shall provide all Lenders with a notice setting
forth the amount, if any, of the Additional Tranche A Commitment to be
provided by each Lender and the revised Commitment Percentages which shall
be applicable after the effective date of the Commitment Increase
specified therein (the "COMMITMENT INCREASE Date"). Nothing in this
Section 2.2 shall constitute or be deemed to constitute an agreement by
any Lender to increase its Commitment hereunder.
(b) On the Commitment Increase Date the outstanding principal
balance of the Loans shall be reallocated among the Lenders such that
after the Commitment Increase Date the outstanding principal amount of
Tranche A Loans owed to each Lender shall be equal to such Lender's
Commitment Percentage with respect to such Lender's Tranche A Commitment
(as in effect after the Commitment Increase Date) of the outstanding
principal amount of all Tranche A Loans. On the Commitment Increase Date
those Lenders whose Commitment Percentage is increasing shall advance the
funds to the Agent and the funds so advanced shall be distributed among
the Lenders whose Commitment Percentage is decreasing as necessary to
accomplish the required reallocation of the outstanding Loans. The funds
so advanced shall be Prime Rate Loans until converted to Eurocurrency Rate
Loans which are allocated among all Lenders based on their Commitment
Percentages. To the extent such reallocation results in certain Lenders
receiving funds which are applied to Eurocurrency Rate Loans prior to the
last day of the applicable Interest Period, then the Borrower shall pay to
the Agent for the account of the affected Lenders the Eurocurrency
Prepayment Fee which shall be
30
determined separately for each such Lender in the manner set forth in
Section 3.3. On the Commitment Increase Date, the Lenders' respective
interests in outstanding Letters of Credit shall also be adjusted to
reflect the revised Commitment Percentages. Upon request from any Lender
whose interest in an outstanding Letter of Credit is so increasing, the
Borrower will pay additional Letter of Credit fees for the amount of such
increase at the rate provided in Section 2.9(c) prorated for the period
from the Commitment Increase Date until the expiration of the applicable
Letter of Credit.
(c) The Borrower shall have the right at any time upon at least ten
(10) Business Days' prior written notice to the Agent, to reduce by
$10,000,000 or an integral multiple of $10,000,000 in excess thereof the
unborrowed portion of the then Total Commitment, provided that (i) the
Total Commitment shall not be reduced to less than $100,000,000 unless the
Total Commitment is reduced to zero, (ii) the Tranche A Commitments as
reduced shall not be in an amount less than the sum of the aggregate
Tranche A Obligations and the aggregate Tranche A Letter of Credit
Obligations, and (iii) the Tranche B Commitments as reduced shall not be
in an amount less than the sum of aggregate the Tranche B Obligations and
the aggregate Tranche B Letter of Credit Obligations. The Tranche A
Commitments and the Tranche B Commitments of the Lenders shall be reduced
pro rata in accordance with their respective Commitment Percentages by the
amount specified in any such notice. Upon the effective date of any such
reduction, the Borrower shall pay to the Agent for the respective accounts
of the Lenders the full amount of any Facility Fee then accrued on the
amount of the reduction. No reduction of the Commitments may be
reinstated.
(d) Upon the effective date of each increase or reduction in the
Total Commitment pursuant to this Section 2.2, the Agent may make such
other changes by way of supplement, amendment or restatement of any Loan
Documents as may be necessary or desirable to reflect the Commitment
Increase, notwithstanding anything to the contrary in Section 25, without
the consent of any Lenders other than the Lenders with an Additional
Tranche A Commitment. The Borrower shall also execute and deliver to the
Agent new Notes for each Lender whose Commitment has changed so that the
principal amount of such Lender's Note (not including the Note relating to
the Swingline Commitment) shall equal its Commitment. The Agent shall
deliver such replacement Notes to the respective Lenders in exchange for
the Notes replaced thereby which shall be surrendered by such Lenders.
Such new Notes shall provide that they are replacements for the
surrendered Notes and that they do not constitute a novation, shall be
dated as of the Commitment Increase Date or the effective date of such
reduction in the Total Commitment, as applicable, and shall otherwise be
in substantially the form of the replaced Notes. Within five (5) days of
issuance of any new Notes pursuant to this Section 2.2(d), the Borrower
shall deliver an opinion of counsel, addressed to the Lenders and the
Agent, relating to the due authorization, execution and delivery of such
new Notes and the enforceability thereof, in form and substance reasonably
satisfactory to the Lenders. The surrendered Notes shall be canceled and
returned to the Borrower.
Section 2.3. The Notes. The Loans under the Facility shall be evidenced
by separate promissory notes of the Borrower in substantially the form of
Exhibit A hereto (or if such note is
31
a Designated Bank Note, in substantially the form of Exhibit N hereto) (each a
"NOTE"), and completed with appropriate insertions and there shall also be a
Swingline Note payable to the order of the Swingline Lender in the principal
amount of the Swingline Commitment. One or more Notes shall be payable to the
order of each Lender in an aggregate principal amount equal to such Lender's
Commitment. The Borrower irrevocably authorizes each Lender to make or cause to
be made, at or about the time of the Borrowing Date of any Loan or at the time
of receipt of any payment of principal on such Lender's Note, an appropriate
notation on such Lender's Record reflecting the making of such Loan or (as the
case may be) the receipt of such payment. The outstanding amount of the Loans
set forth on such Lender's Record shall (absent manifest error) be prima facie
evidence of the principal amount thereof owing and unpaid to such Lender, but
the failure to record, or any error in so recording, any such amount on the
Record shall not limit or otherwise affect the obligations of the Borrower
hereunder or under any Note to make payments of principal of or interest on any
Note when due. Upon receipt of an affidavit of an officer of any Lender as to
the loss, theft, destruction or mutilation of its Note or any other security
document which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon cancellation of such Note or other
security document, Borrower will issue, in lieu thereof, a replacement Note or
other security document in the same principal amount thereof and otherwise of
like tenor.
Section 2.4. Interest on Loans.
(a) Subject to Section 4.9, each Prime Rate Loan shall bear
interest for the period commencing with the Borrowing Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate equal to the Prime Rate plus the Applicable Margin.
(b) Subject to Section 4.9, each Eurocurrency Rate Loan shall bear
interest for the period commencing with the Borrowing Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the applicable Eurocurrency Rate determined for
such Interest Period plus the Applicable Margin (or, with respect to
Competitive Bid Loans, the applicable Competitive Bid Margin) plus (in the
case of a Eurocurrency Rate Loan of any Lender which is lent from a
Eurocurrency Lending Office in the United Kingdom or a Participating
Member State) the Mandatory Cost.
(c) The Borrower unconditionally promises to pay interest on each
Loan in arrears on each Interest Payment Date with respect thereto.
Section 2.5. Requests for Loans.
(a) The Borrower shall give to the Agent written notice in the form
of Exhibit B hereto of each Loan requested hereunder (a "LOAN REQUEST") no
later than 11:00 a.m. on (a) the Business Day prior to the proposed
Borrowing Date of any Prime Rate Loan other than a Swingline Loan, (b) two
(2) Business Days prior to the proposed Borrowing Date of any LIBOR Rate
Loan, or (c) four (4) Business Days prior to the proposed Borrowing Date
of any Alternative Currency Loan. Each such notice shall specify (i) the
principal amount in the requested currency of the proposed Loan, (ii) the
proposed
32
Borrowing Date of such Loan, (iii) the Interest Period for such Loan, (iv)
the Type of such Loan and the requested currency of such Loan if a
Eurocurrency Loan, and (v) the Tranche A Availability or Tranche B
Availability, as applicable, as of the date of the Loan Request, and shall
be accompanied by a statement in the form of Exhibit C hereto signed by a
Responsible Officer setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 9.1 through
Section 9.6 hereof after giving effect to such requested Loan (a
"COMPLIANCE Certificate"). Upon receipt of a Loan Request, the Agent
shall, within one (1) Business Day thereafter, provide to each of the
Lenders with a Commitment for such Loan by facsimile a copy of such Loan
Request and accompanying Compliance Certificate and each Lender shall,
within 24 hours thereafter, notify the Agent if it believes that any of
the conditions contained in Section 11 of this Agreement has not been met
or waived. If such A notice is given the Requisite Lenders shall promptly
determine whether all of the conditions contained in Section 11 of this
Agreement have been met oR waived. If no such notice is given by any
Lender or if following such notice the Requisite Lenders determine that
the conditions contained in Section 11 have been met or waived, each of
the Lenders shall be obligated to fund its Commitment Percentage of the
requested Loans. Each such Loan Request shall be irrevocable and binding
on the Borrower and the Borrower shall be obligated to accept the Loan
requested from the Lenders on the proposed Borrowing Date. Each Loan
Request shall be in a minimum aggregate amount of $3,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(b) Notwithstanding anything contained in Section 2.5(a) to the
contrary, in the event that the making of a requested Loan would cause
non-compliance with anY of the covenants contained in Section 9.1 through
Section 9.6 hereof, the Agent may, in its sole discretion, reduce the
amount of the Loan Request to an amoUNT which would enable the Borrower to
maintain compliance with such otherwise defaulted covenant or covenants
and Borrower shall accept the Loan made pursuant to such reduced Loan
Request.
Section 2.6. Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert any
outstanding Loan denominated in Dollars to a Loan of another Type
denominated in Dollars, provided that (i) with respect to any such
conversion of a LIBOR Rate Loan to a Prime Rate Loan, the Borrower shall
give the Agent written notice of such election no later than 11:00 a.m.
two (2) Business Days prior to the conversion; (ii) with respect to any
such conversion of a LIBOR Rate Loan into a Prime Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto; (iii) subject to the further proviso at the end of this
section and subject to Section 2.6(b) and Section 2.6(d) hereof, with
respect to any such conversion of a Prime Rate Loan to a LIBOR Rate Loan,
the Borrower shall give the Agent written notice of such election no later
than 11:00 a.m. at least two (2) Business Days prior to the conversion and
(iv) no Loan may be converted into a LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing. The Agent shall promptly
provide notice of any such request to the Lenders. On the date on which
such conversion is being made, each Lender shall take such action as is
necessary to transfer its Commitment Percentage of such Loans to its
Domestic Lending Office or
33
its Eurocurrency Lending Office, as the case may be. All or any part of
outstanding Loans of any Type may be converted as provided herein,
provided further that each Conversion Request relating to the conversion
of a Prime Rate Loan to a LIBOR Rate Loan shall be for an amount equal to
$3,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall be irrevocable by the Borrower. The Borrower may not convert
Alternative Currency Loans to Loans of another Type, but may continue such
Loans in accordance with Section 2.6(b).
(b) Any Loans of any Type may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in Section 2.6(a); provided
that no Eurocurrency Rate Loan may be continued as such when any Default
or Event of Default haS occurred and is continuing but, (i) in the case of
a Eurocurrency Rate Loan denominated in Dollars, shall be automatically
converted to a Prime Rate Loan and (ii) in the case of a Eurocurrency Rate
Loan denominated in any Alternative Currency, such Eurocurrency Rate Loan
shall be repaid, in each case, on the last day of the first Interest
Period relating thereto ending during the continuance of any Default or
Event of Default.
(c) In the event that the Borrower does not notify the Agent of its
election hereunder with respect to (i) any Loan denominated in Dollars,
such Loan shall be automatically converted to a Prime Rate Loan at the end
of the applicable Interest Period and (ii) any Alternative Currency Loan,
such Loan shall be due and payable on the last day of the Interest Period
for such Loan.
(d) The Borrower may not request a Eurocurrency Rate Loan pursuant
to Section 2.5, elect to convert a Prime Rate Loan to a LIBOR Rate Loan
pursuant to Section 2.6(A) or elect to continue a Eurocurrency Rate Loan
pursuant to Section 2.6(b) if, after giving effect thereto, there would
be greater than ten (10) EurocurrencY Rate Loans outstanding (whether
denominated in Dollars or Alternative Currency) or greater than four (4)
Eurocurrency Rate Loans outstanding that are denominated in any
Alternative Currencies. Any Loan Request for a Eurocurrency Rate Loan that
would create greater than ten (10) Eurocurrency Rate Loans outstanding
shall be deemed to be a Loan Request for a Prime Rate Loan.
(e) From and after the occurrence of an Event of Default, the Agent
may, or upon request of the Requisite Lenders holding Tranche B
Commitments shall, require that each Alternative Currency Loan then
outstanding be repaid by means of one or more Prime Rate Loans in the
amount of the Dollar Equivalent of such Alternative Currency Loan.
Section 2.7. Funds for Loans.
(a) Subject to Section 2.5 and other provisions of this Agreement,
not later than 1:00 p.m. on the proposed Borrowing Date of any Loans, each
of the LenderS with a Commitment for such Loan will make available to the
Agent, at the Agent's Head Office, in immediately available funds, the
amount of such Lender's Commitment Percentage of the amount of the
requested Loans. Upon receipt from each Lender of such amount, and
34
upon receipt of the documents required by Section Section 10 or 11
(whichever is applicable) and the satisfaction of the other conditions set
forth therein, to the extent applicable, the AgENT will make available to
the Borrower the aggregate amount of such Loans made available to the
Agent by the Lenders. The failure or refusal of any Lender to make
available to the Agent at the aforesaid time and place on any Borrowing
Date the amount of its Commitment Percentage of the requested Loans shall
not relieve any other Lender from its several obligation hereunder to make
available to the Agent the amount of such other Lender's Commitment
Percentage of any requested Loans but shall not obligate any other Lender
or Agent to fund more than its Commitment Percentage of the requested
Loans or to increase its Commitment Percentage.
(b) The Agent may, unless notified to the contrary by any Lender
prior to a Borrowing Date, assume that such Lender has made available to
the Agent on such Borrowing Date the amount of such Lender's Commitment
Percentage of the Loans to be made on such Borrowing Date, and the Agent
may (but it shall not be required to), in reliance upon such assumption,
make available to the Borrower a corresponding amount. If any Lender makes
available to the Agent such amount on a date after such Borrowing Date,
such Lender shall pay to the Agent on demand an amount equal to the
product of (i) the average computed for the period referred to in clause
(iii) below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such
period, times (ii) the amount of such Lender's Commitment Percentage of
such Loans, times (iii) a fraction, the numerator of which is the number
of days or portion thereof that elapsed from and including such Borrowing
Date to the date on which the amount of such Lender's Commitment
Percentage of such Loans shall become immediately available to the Agent,
and the denominator of which is 365. A statement of the Agent submitted to
such Lender with respect to any amounts owing under this paragraph shall
be prima facie evidence of the amount due and owing to the Agent by such
Lender.
Section 2.8. Swingline Loans.
(a) Subject to the provisions of this Section 2.8 and the other
terms and conditions set forth in this Agreement, the Swingline Lender
agrees to lend to thE Borrower and the Borrower may borrow, repay and
reborrow from time to time between the Effective Date and the date which
is five (5) days prior to the Maturity Date, such sums as are requested by
Borrower up to a maximum aggregate principal amount of Swingline Loans
outstanding (after giving effect to all amounts requested) at any one time
equal to the Swingline Commitment, provided that the (i) Outstanding
Obligations, including the outstanding amount of Swingline Loans (after
giving effect to all amounts requested) shall not at any time exceed the
Maximum Credit Amount, (ii) the sum of the Tranche A Obligations
(including any Swingline Loans deemed to use the Tranche A Commitments as
provided below) and the Tranche A Letter of Credit Obligations shall not
at any time exceed the Tranche A Commitments and (iii) the sum of the
Tranche B Obligations (including any Swingline Loans deemed to use the
Tranche B Commitments as provided below) and the Tranche B Letter of
Credit Obligations shall not at any time exceed the Tranche B Commitments.
All Swingline Loans will be Prime Rate Loans.
35
Notwithstanding any other provision of this Agreement to the contrary,
each Swingline Loan shall be a Tranche A Loan and shall be deemed to use
the Tranche A Commitments, unless the Tranche A Commitments have been
fully used and are not available at such time for Loan, in which case such
Swingline Loan shall be a Tranche B Loan, if such Tranche B Commitments
are available, and shall be deemed to use the Tranche B Commitments.
(b) The Borrower shall give to the Agent a Swingline Loan Request no
later than 1:00 p.m. on the proposed Borrowing Date for any Swingline
Loan. Each such Swingline Loan Request shall be irrevocable and binding on
the Borrower and the Borrower shall be obligated to accept the Swingline
Loan requested from the Swingline Lender on the proposed Borrowing Date.
Each Swingline Loan Request shall be in a minimum aggregate amount of
$100,000 or in integral multiple of $100,000 in excess thereof. Unless the
Swingline Lender determines that certain of the conditions contained in
Section 11 oF this Agreement have not been met or waived as of the
proposed Borrowing Date, then the Swingline Lender will make available to
the Agent, and the Agent will make available to the Borrower, the
aggregate amount of the Swingline Loans so requested before the close of
business on the Borrowing Date. The Borrower agrees to repay each
Swingline Loan within seven (7) Business Days after the Borrowing Date
thereof. In addition, the Borrower agrees that Swingline Loans shall not
be outstanding for more than a total of fourteen (14) days during any
month and the Borrower shall repay Swingline Loans to the extent necessary
to comply the foregoing restriction. The funds used to repay such
Swingline Loan may be from Loans made pursuant to Section 2.1, or with
other funds of the Borrower, but the Borrower may not use the proceeds of
one Swingline Loan to repay a previous SwinglinE Loan. The Borrower and
the Lenders agree that upon written demand by the Swingline Lender (which
may be given at any time and shall be deemed given if any Swingline Loan
is not repaid on the date required by this Agreement), the Agent shall
give each Lender a notice requiring the funding of a Mandatory Prime Rate
Loan for the purpose of repaying a Swingline Loan. Within one (1) business
day after receipt of such notice from the Agent, each Lender shall be
obligated to fund its Commitment Percentage of the Mandatory Prime Rate
Loan. Upon the funding of such Mandatory Prime Rate Loan, the Agent shall
forward the proceeds thereof to the Swingline Lender to repay the
applicable Swingline Loan. Each Lender shall be obligated to fund its
Commitment Percentage of Mandatory Prime Rate Loans hereunder regardless
of whether or not all of the conditions contained in Section 11 of thiS
Agreement have been met or waived and even if the funding is to take place
after the Maturity Date.
(c) In the event that a Mandatory Prime Rate Loan cannot be made on
the date required in the paragraph (b) above, upon written demand by the
Swingline Lender, each other Lender shall purchase from the Swingline
Lender a participating interest in the outstanding Swingline Loan in an
amount equal to such other Lender's Commitment Percentage of such
outstanding Swingline Loan as of the date of such purchase. Each Lender
agrees to purchase its Commitment Percentage of each Swingline Loan within
one (1) business day after such demand therefor is made by the Swingline
Lender and on such date of purchase, an amount equal to such Lender's
Commitment Percentage of the
36
outstanding principal amount of the Swingline Loan to be purchased by such
Lender shall be advanced to the Agent and upon receipt of such funds the
Agent shall transfer such funds to the Swingline Lender. Upon any sale by
the Swingline Lender to any other Lender of a participating interest in
any Swingline Loan pursuant to this paragraph, the Swingline Lender
represents and warrants to such other Lender that the Swingline Lender is
the legal and beneficial owner of the interest being sold by it, free and
clear of any liens, but makes no other representation or warranty. Except
for such representation and warranty, the Swingline Lender shall have no
responsibility or liability to any other Lender with respect to the
Swingline Loans or the participation therein so sold, and no Lender shall
have any recourse against the Swingline Lender with respect to such
Swingline Loans or participation therein, except that the Swingline Lender
shall pay to each Lender that purchases a participation interest in
Swingline Loans pursuant to this paragraph such Lender's ratable share of
the payments, if any, actually received by the Swingline Lender on account
of such Swingline Loans. If and to the extent that any Lender does not so
advance the purchase price for such participation interest as required by
this paragraph, such Lender agrees to pay to the Agent, for the account of
Swingline Lender, on demand an amount computed in the same manner as the
amount due to the Agent from a Lender which has made available funds for
loans after the Borrowing Date thereof pursuant to Section 2.7(b).
Section 2.9. Letters of Credit.
(a) Up to $50,000,000 of the Commitments may be used by Borrower for
the issuance of Letters of Credit by the L/C Issuer for the account of the
Borrower subject to the terms and conditions set forth herein. Each Letter
of Credit shall be denominated in Dollars or Alternative Currency and
shall be a standby letter of credit issued to support the obligations of
Borrower in connection with any purposes for which the proceeds of the
Loans may be used pursuant to Section 7.11; provided that after giving
effect to all Letters of Credit requested, in no event shall (i) the sum
of the Tranche A LetteR of Credit Obligations and the Dollar Equivalent of
the Tranche B Letter of Credit Obligations exceed fifty million dollars
($50,000,000), (ii) the aggregate Credit Exposure of all Lenders exceed
the Maximum Credit Amount, (iii) the sum of the Tranche A Obligations and
the Tranche A Letter of Credit Obligations exceed the Tranche A
Commitments and (iv) the sum of the Dollar Equivalent of the Tranche B
Obligations and the Dollar Equivalent of the Tranche B Letter of Credit
Obligations exceed the Tranche B Commitments. Each Letter of Credit shall
have an initial term of not more than one (1) year, and shall expire no
later than fifteen (15) days (thirty (30) days in the case of a Letter of
Credit denominated in Alternative Currency) prior to the Maturity Date;
provided, that (i) any Letter of Credit with a one-year term may provide
for the automatic renewal thereof for additional one-year periods so long
as such renewal does not extend the expiration date of such Letter of
Credit beyond the dates set forth above and (ii) Letters of Credit
denominated in Dollars may have a later expiration date so long as (A)
such expiration date is not later than 364 days after the Maturity Date
and (B) the Borrower provides cash collateral for each such Letter of
Credit at least ten (10) days prior to the Maturity Date. On or before the
date that is ten (10) days prior to the Maturity Date, the Borrower shall
deposit in an interest-bearing cash collateral account
37
opened by the Agent an amount equal to the aggregate then undrawn and
unexpired amount of all Letters of Credit that have an expiration date
which extends beyond the Maturity Date. Amounts held in such cash
collateral account shall be applied by the Agent towards the reimbursement
of any drawings under such Letters of Credit. After the payment in full of
all Obligations hereunder, any unused portion of such cash collateral
(including any interest) shall be returned to the Borrower. Any letter of
Credit expiring after the Maturity Date shall be governed by the terms of
this Agreement, which shall survive the Maturity Date for such purpose.
Although the L/C Issuer shall be the issuing bank of the Letter of Credit,
each Lender hereby accepts for its own account and risk an undivided
interest equal to its Commitment Percentage in the L/C Issuer's
obligations and rights under each Letter of Credit issued hereunder. Each
Lender unconditionally and irrevocably agrees with the L/C Issuer that, if
a draft is paid under any Letter of Credit, such Lender shall promptly pay
to the L/C Issuer an amount equal to such Lender's Commitment Percentage
of the amount of such draft or any part thereof. Upon the issuance of each
Letter of Credit hereunder, there shall be reserved from each Lender's
Commitment an amount equal to such Lender's Commitment Percentage of the
stated amount of the Letter of Credit. Such reserved amounts shall remain
in place and shall be unavailable for borrowing under Section 2.1 until
the date that the Letter of Credit expires, is fully drawn or is
terminated. Notwithstanding anY other provision of this Agreement to the
contrary, (a) each Letter of Credit denominated in Dollars shall be a
Tranche A Letter of Credit and shall be deemed to use the Tranche A
Commitments, unless the Tranche A Commitments have been fully used and are
not available at such time for such Letter of Credit, in which case such
Letter of Credit denominated in Dollars shall be a Tranche B Letter of
Credit, if such Tranche B Commitments are available, and shall be deemed
to use the Tranche B Commitments, and (b) each Letter of Credit
denominated in an Alternative Currency shall be a Tranche B Letter of
Credit, if such Tranche B Commitments are available, and shall be deemed
to use the Tranche B Commitments. The letters of credit issued prior to
the Effective Date by Bank of America described on Schedule 1.4 (the
"EXISTING LETTERS OF CREDIT") shall be deemed to be Letters of Credit for
all purposes hereunder and shall be deemed to be Tranche A Letters of
Credit and use the Tranche A Commitments.
(b) The Borrower shall give to the L/C Issuer and the Agent a
written notice in the form of Exhibit F hereto of each Letter of Credit
requested hereunder (a "LETTER OF CREDIT REQUEST") no less than five (5)
Business Days (or in the case of a Letter of Credit denominated in
Alternative Currency, at least ten (10) Business Days) prior to the
proposed issuance date of the requested Letter of Credit. Each Letter of
Credit Request shall specify (i) the name and address of the beneficiary
of the requested Letter of Credit and the requested currency of such
Letter of Credit, (ii) the stated amount of the requested Letter of Credit
in the requested currency, (iii) the proposed issuance date and expiration
date of the requested Letter of Credit, (iv) the proposed form of the
requested Letter of Credit, and (v) the permitted purpose for which the
Letter of Credit will be used. The L/C Issuer may also require that the
Borrower complete its standard letter of credit application in the form of
Exhibit G attached hereto, as such standard form may be revised from time
to time, and submit the same together with the Letter of Credit Request.
Within two (2) Business Days after receipt of a Letter of Credit Request,
the
38
L/C Issuer shall provide the Agent and the Agent shall provide to each of
the Lenders by facsimile the Letter of Credit Request and such other
documents and information pertaining to such requested Letter of Credit
issuance. Unless the L/C Issuer has received written notice from any
Lender or Agent at least one (1) Business Day prior to the requested date
of issuance of the applicable Letter of Credit that any conditions
contained in Section 11 of the Agreement shall not then be satisfied, and
so long as the L/C Issuer haS determined in its discretion that it is
willing to issue the requested Letter of Credit and that it is satisfied
with the proposed form thereof, then, the L/C Issuer shall, on the
requested date, issue the Letter of Credit and each of the Lenders shall
then be obligated to the L/C Issuer with respect to its Commitment
Percentage of the Letter of Credit as provided above in Section 2.9(a).
(c) The Borrower shall pay to the L/C Issuer for its own account a
fronting fee for each Letter of Credit equal to the greater of (i)
one-tenth percent per annum (0.10%) of the Dollar Equivalent of the stated
amount of the Letter of Credit or (ii) $1,500, payable in arrears on the
last Business Day of each calendar quarter. The Borrower shall pay to the
Agent for the account of the Lenders a Letter of Credit fee equal to the
then prevailing Applicable Margin for Eurocurrency Rate Loans less
one-tenth of one percent (0.10%) per annum of the Dollar Equivalent of the
stated amount of the Letter of Credit, which Letter of Credit fee shall be
due and payable on the last Business Day of each calendar quarter. Such
fronting fee and Letter of Credit fee shall be prorated for any partial
quarter based on a 360-day year and paid for the actual number of days
between the last Business Day of the previous calendar quarter and the
expiration date or termination of such Letter of Credit. Promptly after
its receipt thereof the Agent shall distribute such Letter of Credit fee
to the Lenders pro-rata in accordance with their respective Commitment
Percentages. Such fees shall be nonrefundable. The Borrower also agrees to
pay the L/C Issuer's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder and to reimburse the L/C Issuer for all reasonable
fees, costs, expenses and disbursements of the L/C Issuer in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(d) On or promptly after each Drawing Date the L/C Issuer shall
notify the Agent and the Agent shall notify the Lenders and the Borrower
of the amount of the draft paid by the L/C Issuer on such Drawing Date.
The payment of a draft under a Letter of Credit shall constitute an
advance of a Mandatory Prime Rate Loan in an amount equal to the Dollar
Equivalent of the aggregate amount of the drawing, which amount shall bear
interest as a Prime Rate Loan from the Drawing Date. On the Drawing Date
each Lender shall make available to the L/C Issuer in immediately
available funds its Commitment Percentage of the amount of the Mandatory
Prime Rate Loan so advanced upon such payment of a draft under the Letter
of Credit. If the L/C Issuer receives such funds from any Lender on a date
after the Drawing Date, such Lender will be entitled to distribution
pursuant to Section 14.5 of its pro ratA share of interest paid by
Borrower on such Mandatory Prime Rate Loan accrued from the Drawing Date,
but such Lender shall pay to the L/C Issuer on demand an amount computed
in the same manner as the amount due to the L/C Issuer from a Lender which
has made available funds for loans after the Borrowing Date
39
thereof pursuant to Section 2.7(b). Each Lender's obligation to fund its
Commitment Percentage of Mandatory Prime Rate Loans arising froM the
payment of a draft under a Letter of Credit shall not be subject to the
satisfaction of the conditions set forth in Section 11. Within three (3)
Business Days after each Drawing Date, the Borrower shall deliver to the
Agent a written explanation of the facts and circumstances relating to
such drawing and a Compliance Certificate and any other information
requested by the L/C Issuer or the Agent for the purpose of allowing the
Lenders to determine whether the drawing or related events have resulted
in a Default or Event of Default. The Agent shall promptly provide copies
of such explanation and information to the Lenders. In the event that a
Mandatory Prime Rate Loan cannot be made on the date required in this
paragraph, upon written demand by the L/C Issuer, each other Lender shall
purchase from the L/C Issuer a participating interest in the unreimbursed
draft paid pursuant to such Letter of Credit in an amount equal to such
other Lender's Commitment Percentage of such unreimbursed draft. Each
Lender agrees to purchase its Commitment Percentage of such unreimbursed
draft within one (1) Business Day after such demand therefor is made by
the L/C Issuer and on such date of purchase, an amount equal to such
Lender's Commitment Percentage of such unreimbursed draft to be purchased
by such Lender shall be advanced to the L/C Issuer.
(e) The Borrower's obligations under this Section 2.9 shall be
absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Agent, the L/C Issuer, any
Lender or any beneficiary of a Letter of Credit. The Borrower also agrees
that the L/C Issuer shall not be responsible for, and the Borrower's
reimbursement obligations hereunder shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or (iii) any claims
whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. The L/C Issuer shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors, omissions, interruptions or
delays caused by the L/C Issuer's gross negligence or willful misconduct.
The Borrower agrees that any action taken or omitted by the L/C Issuer
under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the
Uniform Customs and Practices for Documentary Credits as the same may be
amended from time to time, shall be binding on the Borrower and shall not
result in any liability of the L/C Issuer to the Borrower.
(f) In the event that any Letters of Credit are in effect at the
time of an acceleration of the maturity of the Loans pursuant to Section
12.1, the amountS which shall thereupon become immediately due and payable
by the Borrower shall include a sum equal to the Dollar Equivalent of the
aggregate stated amount of such then effective Letters of Credit. Such sum
shall be deposited in a cash collateral account to be opened
40
by the L/C Issuer which shall be under the sole dominion and control of
the L/C Issuer. The Borrower hereby grants to the L/C Issuer, for the
benefit of the Lenders, as security for the Obligations a first priority
security interest in such cash collateral account and all deposits at any
time therein and the proceeds thereof and the Borrower shall execute and
deliver such documents and take all actions as may be required to create
and maintain a valid and perfected first priority Lien on such cash
collateral account in favor of the L/C Issuer. Borrower acknowledges that
the L/C Issuer shall be deemed to be in control of such cash collateral
account as required for perfection of said security interest under Article
9 of the Uniform Commercial Code. Amounts held in such cash collateral
account shall be applied by the L/C Issuer on each Drawing Date thereafter
to pay any drafts presented pursuant to the Letters of Credit. After all
Letters of Credit have been fully drawn upon, expired or otherwise
terminated, any balance remaining in such cash collateral account shall be
applied in the same manner as enforcement proceeds under Section 12.4.
(g) For the purposes of this Agreement, the issuance of any
supplement, modification, amendment, renewal, extension to or of any
Letter of Credit shall be treated the same as the issuance of a new Letter
of Credit.
Section 2.10. Competitive Bid Loans. In addition to the Tranche A Loans,
Tranche B Loans and Swingline Loans made pursuant to Section 2 hereof so long
as the BorroWER maintains ratings from two of the three Ratings Agencies of BBB-
or Baa3 or higher, as applicable, subject to the terms and conditions set forth
herein, the Borrower may from time to time request Competitive Bid Loans
pursuant to the terms of this Section 2.10, provided that (x) at no time shall
the Dollar Equivalent oF the aggregate principal amount of Competitive Bid Loans
outstanding at any time exceed fifty percent (50%) of the Total Commitments, (y)
to the extent that the requested Competitive Bid Loan is to be denominated in an
Alternative Currency, the Dollar Equivalent of the aggregate principal amount of
the requested Competitive Bid Loan shall not exceed the Tranche B Availability
and (z) the Dollar Equivalent of the aggregate principal amount of the requested
Competitive Bid Loan shall not exceed the amount by which the Commitments at
such time exceed the Outstanding Obligations. The Lenders may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept such offers in the manner set forth in this Section 2.10.
Notwithstanding anY other provision of this Agreement to the contrary, (A) each
Competitive Bid Loan denominated in Dollars shall constitute Tranche A
Obligations and shall be deemed to use the Tranche A Commitments, except to the
extent that the Tranche A Commitments have been fully used and are not available
at such time for such Borrowing, in which case the portion of such Competitive
Bid Loan that can not be accommodated by the Tranche A Commitments shall
constitute Tranche B Obligations, if such Tranche B Commitments are available,
and shall be deemed to use the Tranche B Commitments, and (B) each Competitive
Bid Loan denominated in an Alternative Currency shall constitute Tranche B
Obligations, if such Tranche B Commitments are available and shall be deemed to
use the Tranche B Commitments.
(a) The obligation of the Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at
the sum of the Competitive Bid Margin plus the applicable Eurocurrency
Rate accrued thereon, shall be evidenced by this
41
Credit Agreement and by individual loan accounts (the "COMPETITIVE BID
LOAN ACCOUNTS" and individually, a "COMPETITIVE BID LOAN ACCOUNT")
maintained by the Agent on its books for each of the Lenders, it being the
intention of the parties hereto that the Borrower's obligations with
respect to Competitive Bid Loans are to be evidenced only as stated herein
and not by separate promissory notes and shall hereby constitute an
absolute promise to pay when due, without notice, demand, presentment or
setoff.
(b) The Borrower irrevocably authorizes the Agent to make or cause
to be made, in connection with a Borrowing Date of any Competitive Bid
Loan or at the time of receipt of any payment of principal on the
applicable Lender's Competitive Bid Loan Account an appropriate notation,
reflecting the making of the Competitive Bid Loan or the receipt of such
payment. The outstanding amount of the Competitive Bid Loans set forth on
the Agent's records, as applicable, shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Lender, but the failure
to record, or any error in so recording, any such amount shall not limit
or otherwise affect the obligations of the Borrower hereunder to make
payments of principal of or interest on any Competitive Bid Loan when due.
(c) When the Borrower wishes to request offers to make Competitive
Bid Loans under this Section 2.10, it shall transmit to the Agent by
facsimile a CompetitivE Bid Quote Request substantially in the form of
Exhibit H hereto (a "COMPETITIVE BID QUOTE REQUEST") so as to be received
no later than 11:00 a.m. four (4) Business Days (eight (8) Business Days
in the case of a request for a Competitive Bid Quote denominated in
Alternative Currency) prior to the requested Borrowing Date, specifying:
(A) the requested Borrowing Date (which must be a Business
Day);
(B) the requested currency and the aggregate amount in the
requested currency of such Competitive Bid Loans, which shall be the
Dollar Equivalent of $5,000,000 or a larger multiple of $1,000,000;
and
(C) the Type and duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period and/or more than one Borrowing Date in a single Competitive Bid
Quote Request. No new Competitive Bid Quote Request shall be given until the
Borrower has notified the Agent of its acceptance or non-acceptance of the
Competitive Bid Quotes relating to any outstanding Competitive Bid Quote
Request.
(d) Promptly upon receipt of a Competitive Bid Quote Request, the
Agent shall send to the Lenders by telecopy or facsimile transmission an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit
I hereto, which shall constitute an invitation by the Borrower to each
Lender to submit Competitive Bid Quotes in accordance with this Section
2.10.
42
(e) Each Lender may, but shall be under no obligation to, submit a
Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Competitive Bid Quote Request. Each
Competitive Bid Quote must comply with the requirements of this Section
2.10(e) and must be submitteD to the Agent by facsimile transmission not
later than 10:00 a.m. on the third Business Day (or fifth Business Day in
the case of a request for a Competitive Bid Quote denominated in
Alternative Currency) prior to the proposed Borrowing Date, provided that
Competitive Bid Quotes may be submitted by the Agent in its capacity as a
Lender only if it submits its Competitive Bid Quote to the Borrower not
later than one hour prior to the deadline for the other Lenders.
Competitive Bid Loans to be funded pursuant to a Competitive Bid Quote
may, as provided in Section 18.9, be funded by A Lender's Designated
Bank. A Lender making a Competitive Bid Quote may, but shall not be
required to, specify in its Competitive Bid Quote whether the related
Competitive Bid Loans are intended to be funded by such Lender's
Designated Bank, as provided in Section 18.9. Subject to the provisions
oF Section Section 10 and 11 hereof, any Competitive Bid Quote so made
shall be irrevocable except with the written consent of the Agent given on
the instructions OF the Borrower.
(f) Each Competitive Bid Quote shall be in substantially the form of
Exhibit J hereto and shall in any case specify:
(i) the proposed Borrowing Date(s);
(ii) the principal amount of the Competitive Bid Loan for
which each proposal is being made, the Dollar Equivalent of which
principal amount (w) may be greater than or less than the Commitment
of the quoting Lender, (x) must be $1,000,000 or a larger multiple
of $500,000, (y) may not exceed the aggregate principal amount of
Competitive Bid Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of
Competitive Bid Loans for which offers being made by such quoting
Lender may be accepted;
(iii) the Interest Periods for which Competitive Bid Quotes
are being submitted;
(iv) the margin above or below the applicable Eurocurrency
Rate (the "COMPETITIVE BID MARGIN") offered for each such
Competitive Bid Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such
Eurocurrency Rate; and
(v) the identity of the quoting Lender.
A Competitive Bid Quote may include up to five (5) separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(g) Any Competitive Bid Quote shall be disregarded if it:
43
(i) is not substantially in the form of Exhibit J hereto;
(ii) contains qualifying, conditional or similar language;
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in Section 2.10 (e)
hereof.
(h) The Agent shall promptly notify the Borrower of the terms (a) of
any Competitive Bid Quote submitted by a Lender that is in accordance with
Section 2.10(e) and (b) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid
Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be
disregarded by the Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former Competitive
Bid Quote and was received by the Agent within the time period required in
Section 2.10(e) for receipt of Competitive Bid Quotes. The Agent's notice
to the Borrower shall specify (i) thE aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Quote Request and
the Dollar Equivalents thereof, (ii) the respective principal amounts and
Competitive Bid Margins so offered, and the Identity of the respective
Lenders submitting such offers, and (iii) if applicable, limitations on
the aggregate principal amount of Competitive Bid Loans for which offers
in any single Competitive Bid Quote may be accepted.
(i) Not later than 4:00 p.m. on the third Business Day (or fifth
Business Day in the case of a requested Competitive Bid Quote denominated
in Alternative Currency) prior to the proposed Borrowing Date, the
Borrower shall notify the Agent of its acceptance or non-acceptance of
each Competitive Bid Quote in substantially the form of Exhibit K hereto.
The Borrower may accept any Competitive Bid Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) acceptance of offers may only be generally made on the
basis of ascending Competitive Bid Margins with the same terms, and
(iii) the Borrower may not accept any offer that is described
in Section 2.10(g) or that otherwise fails to comply with the
requirements of this Agreement.
The Agent shall promptly notify each Lender which submitted a Competitive Bid
Quote of the Borrower's acceptance or non-acceptance thereof. A Lender who is
notified that it has been selected to make a Competitive Bid Loan may designate
its Designated Bank (if any) to fund such Competitive Bid Loan on its behalf, as
described in Section 18.9. Any Designated Bank which funds a Competitive Bid
Loan shall on and after the time of such funding become the obligee in
44
respect oF such Competitive Bid Loan and be entitled to receive payment thereof
when due. At the request of any Lender which submitted a Competitive Bid Quote,
the Agent will promptly notify all Lenders which submitted Competitive Bid
Quotes of the aggregate principal amount of, and the range of Competitive Bid
Margins of, the accepted Competitive Bid Loans for each requested Interest
Period.
(j) If offers are made by two (2) or more Lenders with the same
Competitive Bid Margin for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of which
such offers at such Competitive Bid Margin are accepted shall be allocated
by the Borrower among such Lenders as nearly as possible (in such
multiples, not less than the Dollar Equivalent of $1,000,000, as the
Borrower may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determination by the Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of manifest
error.
(k) If, on or prior to the Borrowing Date of any Competitive Bid
Loan, the Total Commitment has not terminated in full and if, on such
Borrowing Date, the applicable conditions of Section Section 10 and 11
hereof are satisfied, and the Agent shall have received a Compliance
Certificate, the Lender or LendERS whose offers the Borrower has accepted
will fund each Competitive Bid Loan so accepted. Not later than 1:00 p.m.
on such Borrowing Date, each such Lender or Lenders or Designated Bank
will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Lender's Competitive Bid
Loans. Upon receipt from each such Lender of such amount, the Agent will
make available to the Borrower the aggregate amount of such Loans made
available to the Agent by the Lenders.
(l) The principal of each Competitive Bid Loan shall become
absolutely due and payable by the Borrower on the last day of the Interest
Period relating thereto, and the Borrower hereby absolutely and
unconditionally promises to pay to the Agent for the account of the
relevant Lenders at or before 1:00 p.m. on the last day of the Interest
Periods relating thereto the principal amount of all such Competitive Bid
Loans, plus interest thereon at the sum of the applicable Competitive Bid
Margin specified in the applicable Competitive Bid Quotes plus the
applicable Eurocurrency Rate. Interest on the Competitive Bid Loans shall
be payable in arrears on each Interest Payment Date. Subject to the terms
of this Credit Agreement, the Borrower may make Competitive Bid Quote
Requests with respect to new borrowings of any amounts so repaid prior to
the Maturity Date. The provisions of Section 2.6 shall not apply to
Competitive Bid Loans.
Section 2.11. Sharing Event.
(a) Upon the occurrence of a Sharing Event, automatically (and
without the taking of any action) (x) all then outstanding Eurocurrency
Rate Loans denominated in an Alternative Currency (other than Competitive
Bid Loans) shall be automatically converted into Loans denominated in
Dollars (in an amount equal to the Dollar Equivalent, as determined by the
Agent on the date of such conversion, of the aggregate principal amount of
the such Eurocurrency Rate Loans on the date such Sharing Event
45
first occurred, which Loans denominated in Dollars (i) shall thereafter be
deemed to be Prime Rate Loans and (ii) unless the Sharing Event resulted
solely from a termination of the Total Commitment, shall be immediately
due and payable on the date such Sharing Event has occurred) and (y)
unless the Sharing Event resulted solely from a termination of the Total
Commitment, all accrued and unpaid interest and other amounts owing with
respect to such Eurocurrency Rate Loans shall be immediately due and
payable in Dollars, in an amount equal to the Dollar Equivalent of such
accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect
to any automatic conversion pursuant to Section 2.11(a), each Lender
shall (and herebY unconditionally and irrevocably agrees to) purchase and
sell (in each case in Dollars) undivided participating interests in all
Loans (other than Competitive Bid Loans) outstanding to, and any unpaid
amounts the L/C Issuer has disbursed under a Letter of Credit owing by,
the Borrower in amounts such that each Lender shall have a share of the
outstanding Loans (other than Competitive Bid Loans) and any unpaid
amounts the L/C Issuer has disbursed under a Letter of Credit then owing
by the Borrower equal to its Commitment Percentage of the Total Commitment
(although if because of fluctuations in currency exchange rates any Lender
would be required to purchase such participations after giving effect to
which such Lender's Loans and Letter of Credit participations under
Section 2.9(d) (including participations therein purchased pursuant to
this Section 2.11) would exceed sUCH Lender's Commitment, then such
participations shall be in an amount after giving effect to which such
Lender's Loans and Letter of Credit participations under Section 2.9(d)
(including participations therein purchased pursuant to this Section
2.11) would equal such Lender's Commitment). Upon ANY such occurrence, the
Agent shall notify each Lender and shall specify the amount of Dollars
required from such Lender in order to effect the purchases and sales by
the various Lenders of participating interests in the amounts required
above (together with accrued interest with respect to the period for the
last interest payment date through the date of the Sharing Event plus any
additional amounts payable by the Borrowers pursuant to Section 4.5 in
respect of such accrued but unpaid interest); provided, in the event that
a Sharing Event shall have occurred, each Lender shall be deemeD to have
purchased, automatically and without request, such participating
interests. Promptly upon receipt of such request, each Lender shall
deliver to the Agent (in immediately available funds in Dollars) the net
amounts as specified by the Agent. The Agent shall promptly deliver the
amounts so received to the various Lenders in such amounts as are needed
to effect the purchases and sales of participations as provided above.
Promptly following receipt thereof, each Lender which has sold
participations in any of its Loans and Letter of Credit participations
under Section 2.9(d) (through the Agent) will deliver to each Lender
(through the Agent) which has so purchased a participating interest a
participation certificate dated the date of receipt of such funds and in
such amount. It is understood that the amount of funds delivered by each
Lender shall be calculated on a net basis, giving effect to both the sales
and purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event (i) no further Loans
shall be made, (ii) all amounts from time to time accruing with respect
to, and all amounts from
46
time to time payable on account of, any outstanding Eurocurrency Rate
Loans denominated in Alternative Currency (including, without limitation,
any interest and other amounts which were accrued but unpaid on the date
of such purchase) shall be converted to Loans denominated in Dollars in
accordance with Section 2.11(a) and be payable immediately in Dollars as
if such Eurocurrency Rate Loans had originally been made in Dollars anD
shall be distributed by the relevant Lenders (or their affiliates) to the
Agent for the account of the Lenders which made such Loans or are
participating therein and (iii) the Commitments of the Lenders shall be
automatically terminated. Notwithstanding anything to the contrary
contained above, the failure of any Lender to purchase its participating
interest in any Loans upon the occurrence of a Sharing Event shall not
relieve any other Lender of its obligation hereunder to purchase its
participating interests in a timely manner, but no Lender shall be
responsible for the failure of any other Lender to purchase the
participating interest to be purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to
Section 2.11(b) is not paid to the Agent within one (1) Business Day
following the date upoN which such Lender receives notice from the Agent
of the amount of its participations required to be purchased pursuant to
said Section 2.11(b), such LendeR shall also pay to the Agent on demand
an amount equal to the product of (i) the amount so required to be paid by
such Lender for the purchase of its participations times (ii) the daily
average Federal Funds Rate during the period from and including the date
of request for payment to the date on which such payment is immediately
available to the Agent times (iii) a fraction the numerator of which is
the number of days that elapsed during such period and the denominator of
which is 360. If any such amount required to be paid by any Lender
pursuant to Section 2.11(b) is not in fact madE available to the Agent
within three (3) Business Days following the date upon which such Lender
receives notice from the Agent as to the amount of participations required
to be purchased by it, the Agent shall be entitled to recover from such
Lender on demand, such amount with interest thereon calculated from such
request date at the rate per annum applicable to Prime Rate Loans
hereunder. A certificate of the Agent submitted to any Lender with respect
to any amounts payable by any Lender pursuant to this Section 2.11 shall
be deemed conclusive absent manifest error. Amounts payablE under this
Section 2.11 shall be paid to the Agent for the account of the relevant
Lenders; provided that, if the Agent (in its sole discretion) haS elected
to fund on behalf of such Lender the amounts owing to such Lenders, then
the amounts shall be paid to the Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received
from any Lenders purchases of participations in any Loans pursuant to this
Section 2.11, thE Lenders receive any payment on account thereof, such
Lenders will distribute to the Agent, for the account of the various
Lenders participating therein, such Lenders' participating interests in
such amounts (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such participations were
outstanding) in like funds as received; provided, however, that in the
event that such payment received by any Lenders are required to be
returned, the Lenders who received previous distributions in respect of
their participating interests therein will return to the respective
Lenders any portion
47
thereof previously so distributed to them in like funds as such payment is
required to be returned by the respective Lenders.
(f) Each Lender's obligation to purchase participating interests
pursuant to this Section 2.11 shall be absolute and unconditional and
shall not be affected bY any circumstance including, without limitation,
(i) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against any other Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (iv) any
breach of this Agreement by the Borrower, the Company, any of the other
Guarantors or any Lender or any other Person, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, upon any purchase of participations as required above,
each Lender which has purchased such participations shall be entitled to
receive from the Borrower any increased costs and indemnities directly
from the Borrower to the same extent as if it were the direct Lender as
opposed to a participant therein. The Borrower acknowledges and agrees
that, upon the occurrence of a Sharing Event and after giving effect to
the requirements of this Section 2.11, increased taxes may be owing by
the Borrower pursuanT to Section Section 4.5 and 4.8, which taxes shall
be paid (to the extent provided in such sections) by the Borrower, without
any claim that the increased taXES are not payable because same resulted
from the participations effected as otherwise required by this Section
2.11.
Section 3. REPAYMENT OF THE LOANS.
Section 3.1. Maturity. The Borrower unconditionally promises to pay on
the Maturity Date, and there shall become absolutely due and payable on the
MaturitY Date, all of the Loans outstanding on such date, together with any and
all accrued and unpaid interest and charges thereon. Provided that no Default or
Event of Default has occurred and is continuing (either at the time of exercise
of the option or at the original Maturity Date), the Borrower shall have one (1)
option to extend the Maturity Date for one (1) year by written notice to the
Agent not earlier than ninety (90) days prior to the original Maturity Date and
not later than sixty (60) days prior to the original Maturity Date. Such written
notice must be accompanied by payment to the Agent of an extension fee at the
rate of 0.15% of the Total Commitment, which fee shall be distributed by the
Agent to each Lender in accordance with such Lender's respective Commitment.
Section 3.2. Mandatory Repayments of Loan. If at any time the sum of the
Outstanding Obligations exceeds the Maximum Credit Amount, then the Borrower
shalL immediately pay the amount of such excess to the Agent for the respective
accounts of the Lenders for application to the Loans. If no Event of Default is
then existing, the Borrower may designate which Loans are to be repaid
therewith. The Borrower shall repay Swingline Loans on or before the date
required under Section 2.8. The Borrower shall repay Competitive Bid Loans on
or before the date required under Section 2.10 (l).
48
Section 3.3. Optional Repayments of Loans. The Borrower shall have the
right, at its election, to repay the outstanding amount of the Loans, as a whole
or iN part, on any Business Day, without penalty or premium; provided that the
Borrower shall not have the right to prepay any Competitive Bid Loan with out
the prior written consent of the Lender thereof and the full or partial
prepayment of the outstanding amount of any Eurocurrency Rate Loans made
pursuant to this Section 3.3 may be made only on the last day of the Interest
Period relating thereto, except as set forth below in this Section 3.3. The
Borrower shall give the AgENT prior written notice of any prepayment pursuant to
this Section 3.3 no later than 10:00 a.m., on (i) the same Business Day as
prepayment of any Prime Rate Loans, (ii) the day that is two (2) Business Days
prior to any proposed repayment of any LIBOR Rate Loans, or (iii) the day that
is four (4) Business Days prior to any proposed repayment of any Alternative
Currency Loans, specifying the proposed date of payment of Loans and the
principal amount to be paid. The Agent shall promptly notify each Lender of the
principal amount of such payment to be received by such Lender. Each such
partial prepayment of the Loans shall be in an integral multiple of $1,000,000
and, to the extent requested by the Agent, shall be accompanied by the payment
of all charges outstanding on all Loans and of accrued interest on the principal
repaid to the date of payment. The principal payments so received shall be
applied first to the principal of Swingline Loans, next to the principal of
Prime Rate Loans other than Swingline Loans and then to the principal of
Eurocurrency Rate Loans. Notwithstanding anything contained herein to the
contrary, the Borrower may make a full or partial prepayment of a Eurocurrency
Rate Loan on a date other than the last day of the Interest Period relating
thereto, if all optional prepayments (in whole or in part) on such Loans shall
be accompanied by, and the Borrower hereby promises to pay, a prepayment fee in
an amount determined by the Agent in the following manner:
(a) Eurocurrency Prepayment Fee. Borrower acknowledges that
prepayment or acceleration of a Eurocurrency Rate Loan during an Interest
Period shall result in the Lenders incurring additional costs, expenses
and/or liabilities and that it is extremely difficult and impractical to
ascertain the extent of such costs, expenses and/or liabilities. (For all
purposes of this Section, any Loan not being made as a Eurocurrency Rate
Loan in accordance with the Loan Request therefor, as a result of
Borrower's cancellation thereof, shall be treated as if such Eurocurrency
Rate Loan had been prepaid.) Therefore, on the date a Eurocurrency Rate
Loan is prepaid or the date all sums payable hereunder become due and
payable on a date other than the last day of an Interest Period, by
acceleration or otherwise ("PREPAYMENT DATE"), Borrower will pay to Agent,
for the account of each Lender, (in addition to all other sums then
owing), an amount ("EUROCURRENCY PREPAYMENT FEE") determined by the Agent
as follows: The current rate for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the end of the Interest Period as to which
prepayment is made, shall be subtracted from the interest rate applicable
to the Eurocurrency Rate Loan being prepaid. If the result is zero or a
negative number, there shall be no Eurocurrency Prepayment Fee. If the
result is a positive number, then the resulting percentage shall be
multiplied by the amount of the Eurocurrency Rate Loan being prepaid. The
resulting amount shall be divided by 360 and multiplied by the number of
days remaining in the Interest Period as to which the prepayment is being
made. The resulting amount shall be the Eurocurrency Prepayment Fee.
49
(b) Upon the written notice to Borrower from Agent, Borrower shall
immediately pay to Agent, for the account of the Lenders, the Eurocurrency
Prepayment Fee. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive
and binding on the parties hereto.
(c) Borrower understands, agrees and acknowledges the following: (i)
no Lender has any obligation to purchase, sell and/or match funds in
connection with the use of the Eurocurrency Rate as a basis for
calculating the rate of interest on a Eurocurrency Rate Loan; (ii) the
Eurocurrency Rate is used merely as a reference in determining such rate;
and (iii) Borrower has accepted the Eurocurrency Rate as a reasonable and
fair basis for calculating such rate and a Eurocurrency Prepayment Fee.
Borrower further agrees to pay the Eurocurrency Prepayment Fee, if any,
whether or not a Lender elects to purchase, sell and/or match funds.
Section 3.4. Currency Matters. Dollars are the currency of account and
payment for each and every sum at any time due from the Borrower hereunder;
provided that: (a) except as expressly provided in this Agreement, each
repayment of a Tranche B Loan, Tranche B Letter of Credit Obligation or a part
thereof shall be made in the currency in which such Tranche B Loan or Tranche B
Letter of Credit Obligation, as the case may be, is denominated at the time of
that repayment; (b) each payment of interest shall be made in the currency in
which the principal or other sum in respect of which such interest is payable is
denominated; (c) each payment of any fees shall be in Dollars; (d) each payment
in respect of costs, expenses and indemnities shall be made in the currency in
which the same were incurred; and (e) any amount expressed to be payable in an
Alternative Currency shall be paid in such Alternative Currency. No payment to
the Agent or any Lender (whether under any judgment or court order or otherwise)
shall discharge the obligation or liability in respect of which it was made
unless and until the Agent or such Lender shall have received payment in full in
the currency in which such obligation or liability was incurred, and to the
extent that the amount of any such payment shall, on actual conversion into such
currency, fall short of such obligation or liability, actual or contingent,
expressed in that currency, the Borrower agrees to indemnify and hold harmless
the Agent or such Lender, as the case may be, with respect to the amount of the
shortfall, with such indemnity surviving the termination of this Agreement and
any legal proceeding, judgment or court order pursuant to which the original
payment was made which resulted in the shortfall. To the extent the Agent or any
Lender receives payment of any Obligation in a currency other than the currency
required to be paid hereunder, each of the Agent and such Lender shall take all
reasonable actions to convert such currency into the currency in which the
underlying liability was incurred, at the Agent's or such Lender's spot rate of
exchange, within one (1) Business Day after receipt of payment by the Borrower,
provided, if reasonable methods and/or markets do not exist for making such
exchange, then the Agent or such Lender, as the case may be, will make such
exchange within one (1) Business Day of the date on which making such exchange
is, in the Agent's or such Lender's reasonable determination, commercially
possible, and, provided further, nothing contained herein shall in any manner
limit the Borrower's obligations to pay all Obligations in the currency required
under this Agreement, nor shall it be construed as the Agent's or any Lender's
consent to the Borrower paying any Obligation in any currency other than as set
forth in clauses (a) - (e) of this Section 3.4.
50
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. Closing Fees. On the Effective Date, the Borrower shall pay
to Bank of America and Arranger the fees in the amounts specified in the Fee
Letter required to be paid by the Borrower on or before the Effective Date.
Section 4.2. Other Fees.
(a) Facility Fee. The Borrower shall pay to the Agent for the
accounts of the Lenders a Facility Fee equal to the sum of each Lender's
Commitment multiplied by the Applicable Facility Fee Rate. The Facility
Fee shall be payable on the basis of the applicable annual rate quarterly
in arrears on or before the first Business Day of each calendar quarter
for the immediately preceding calendar quarter commencing on the first
such date following the date hereof, with a final payment on the Maturity
Date or any earlier date on which the Commitments shall terminate.
(b) Administrative Fee. The Borrower shall pay to the Agent, for the
Agent's own account, an annual administrative fee as provided in the Fee
Letter. The Agent's fee shall be payable annually in advance on the
Effective Date and on each anniversary thereof for the following annual
period.
(c) Competitive Bid Rate Loan Fee. The Borrower shall pay to the
Agent, for its own account, a non-refundable competitive bid fee equal to
(i) $1,500 multiplied by (ii) the number of Competitive Bid Quote Requests
provided to the Agent in any calendar month (regardless of whether such
Competitive Bid Loans are borrowed). Such fee shall be payable on the
first day of each calendar month with respect to any Competitive Bid Quote
Requests requested in the prior month.
Section 4.3. Funds for Payments.
(a) Except as expressly provided herein and except with respect to
principal of and interest on Alternative Currency Loans, all payments of
principal, interest, closing fees, Facility Fees and any other amounts due
hereunder (other than as provided in Section 2.2(b), Section 4.1,
Section 4.5 and Section 4.6) or under aNy of the other Loan Documents,
and all prepayments, shall be made to the Agent, for the respective
accounts of the Lenders, at the Agent's Head Office, in each case in
Dollars in Same Day Funds not later than 2:00 p.m. on the dates specified
herein. All payments of principal of and interest on Alternative Currency
Loans shall be made to the Agent, for the respective accounts of the
Lenders, at the place designated by the Agent in such Alternative Currency
in Same Day Funds not later than the Applicable Time specified by the
Agent on the dates specified herein.
(b) All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory liens, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or
51
other authority therein unless the Borrower is compelled by law to make
such deduction or withholding. If any such obligation is imposed upon the
Borrower with respect to any amount payable by it hereunder or under any
of the other Loan Documents, the Borrower shall pay to the Agent, for the
account of the Lenders or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to
enable the Lenders or the Agent to receive the same net amount which the
Lenders or the Agent would have received on such due date had no such
obligation been imposed upon the Borrower. The Borrower will deliver
promptly to the Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by
the Borrower hereunder or under such other Loan Document.
Section 4.4. Computations. All computations of interest on the Loans
(other than Prime Rate Loans) and of other fees to the extent applicable shall
be based on a 360-day year (365 or 366 day year for Prime Rate Loans, or in the
case of interest in respect of Alternative Currency Loans as to which market
practice differs from the foregoing, in accordance with such market practice)
and paid for the actual number of days elapsed. Except as otherwise provided in
the definition of the term "INTEREST PERIOD" with respect to Eurocurrency Rate
Loans, whenever a payment hereunder or under any of the other Loan Documents
becomes due on a day that is not a Business Day, the due date for such payment
shall be extended to the next succeeding Business Day, and such extension of
time shall be included in computing interest and fees in connection with such
payment. The outstanding amount of the Loans as reflected on the Records from
time to time shall (absent manifest error) be considered correct and binding on
the Borrower unless within thirty (30) Business Days after receipt by the Agent
or any of the Lenders from Borrower of any notice by the Borrower of such
outstanding amount, the Agent or such Lender shall notify the Borrower to the
contrary.
Section 4.5. Additional Costs, Etc. If, as a result of any change or
adoption after the date hereof, any present or future applicable law which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Lender's Commitment or the Loans
(other than taxes based upon or measured by the income or profits of such
Lender or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of
or the interest on any Loans or any other amounts payable to any Lender
under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve,
52
assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or
deposits in or for the account of, or Loans by, or commitments of an
office of any Lender, or
(d) impose on any Lender any other conditions or requirements with
respect to this Agreement, the other Loan Documents, the Loans, the Total
Commitment, or any class of Loans or commitments of which any of the Loans
or the Total Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to such Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Lender's Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to such Lender or the Agent hereunder on account of
the Commitments or any of the Loans, or
(iii) to require such Lender or the Agent to make any payment
or to forego any interest or other sum payable hereunder, the amount
of which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed
received by such Lender or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by
such Lender or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to
such Lender or the Agent, to the extent permitted by law, such
additional amounts as will be sufficient to compensate such Lender
or the Agent for such additional cost, reduction, payment or
foregone interest or other sum.
Section 4.6. Capital Adequacy. If, as a result of any change or adoption
after the date hereof, any present or future law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law) or the
interpretation thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be maintained
by banks or bank holding companies and any Lender or the Agent determines that
the amount of capital required to be maintained by it is increased by or based
upon the existence of the Loans made or deemed to be made pursuant hereto, then
such Lender or the Agent may notify the Borrower of such fact, and the Borrower
shall pay to such Lender or the Agent from time to time on demand, as an
additional fee payable hereunder, such amount as such Lender or the Agent shall
determine in good faith and certify in a notice to the Borrower to be an amount
that will adequately compensate such Lender or the Agent in light of these
circumstances for its increased costs of maintaining such capital. Each Lender
and the Agent shall allocate such cost increases among its customers in good
faith and on an equitable basis.
Section 4.7. Certificate. A certificate setting forth any additional
amounts payable pursuant to Section Section 4.5 or 4.6 and a brief explanation
(but reasonably detailEd) of such amounts which are due,
53
submitted by any Lender or the Agent to the Borrower, shall be prima facie
evidence that such amounts are due and owing.
Section 4.8. Indemnity. In addition to the other provisions of this
Agreement regarding any such matters, the Borrower agrees to indemnify each
Lender and to hold each Lender harmless from and against any loss, cost or
reasonable expense (including loss of anticipated profits, but excluding other
incidental or consequential damages) that such Lender may sustain or incur as a
consequence of (a) a default by the Borrower in payment of the principal amount
of or any interest on any Eurocurrency Rate Loans as and when due and payable,
including any such loss or expense caused by Borrower's breach or other default
and arising from interest or fees payable by such Lender to lenders of funds
obtained by it in order to maintain its Eurocurrency Rate Loans, (b) a default
by the Borrower in making a borrowing or conversion after the Borrower has given
(or is deemed to have given) a Loan Request or a Conversion Request, (c) the
making of any payment of a Eurocurrency Rate Loan or the making of any
conversion of a LIBOR Rate Loan to a Prime Rate Loan on a day that is not the
last day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Lender to lenders of funds obtained by it in
order to maintain any such Eurocurrency Rate Loan and (d) any failure by the
Borrower to prepay a Eurocurrency Loan on the date specified in a prepayment
notice given by the Borrower.
Section 4.9. Default Interest and Late Charges. During any period when an
Event of Default has occurred and is continuing, or after the Maturity Date or
after judgment has been rendered on any Note, Borrower's right to select
Eurocurrency Loans shall cease and the unpaid principal of all Loans shall, at
the option of each Lender bear interest at a rate which is four (4) percentage
points per annum greater than that which would otherwise be applicable to Prime
Rate Loans; provided that with respect to any Eurocurrency Rate Loan of any
Lender which is lent from a Eurocurrency Lending Office in the United Kingdom or
a Participating Member State, the rate applicable to such Loan shall be the rate
(including the Applicable Margin and any Mandatory Cost) otherwise applicable to
such Loan plus four percent (4%) per annum.
Section 4.10. Inability to Determine Eurocurrency Rate. In the event,
prior to the commencement of any Interest Period relating to any Eurocurrency
Rate Loan, the Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Eurocurrency Rate that would otherwise determine the
rate of interest to be applicable to any Eurocurrency Rate Loan during any
Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower) to the Borrower. In such
event (a) any Loan Request with respect to Eurocurrency Rate Loans shall be
automatically withdrawn and shall be deemed a request for Prime Rate Loans, (b)
each LIBOR Rate Loan will automatically, on the last day of the then current
Interest Period thereof, become a Prime Rate Loan and each Alternative Currency
Loan shall be repaid on the last day of the then current Interest Period, and
(c) the obligations of the Lenders to make Eurocurrency Rate Loans shall be
suspended until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so notify the Borrower.
Section 4.11. Illegality. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it
54
unlawful for any Lender to make or maintain Eurocurrency Rate Loans, such Lender
shall forthwith give notice of such circumstances to the Borrower and thereupon
(a) the Commitment of such Lender to make Eurocurrency Rate Loans or convert
Loans of another Type to LIBOR Rate Loans shall forthwith be suspended and (b)
the LIBOR Rate Loans then outstanding shall be converted automatically to Prime
Rate Loans, and the Alternative Currency Loans shall be repaid, in each case, on
the last day of each Interest Period applicable to such Eurocurrency Rate Loans
or within such earlier period as may be required by law. The Borrower hereby
agrees promptly to pay to the Agent for the account of such Lender, upon demand,
any additional amounts necessary to compensate such Lender for any costs
incurred by such Lender in making any conversion in accordance with this
Section 4.11, including any interest or fees payable by such Lender to lenders
of funds obtained by it in order to make or maintain its Eurocurrency Rate Loans
hereunder. If, at any time, the rate of interest, together with all amounts
which constitute interest and which are reserved, charged or taken by the
Lenders as compensation for fees, services or expenses incidental to the making,
negotiating or collection of the Loans or the other Obligations, shall be deemed
by any competent court of law, governmental agency or tribunal to exceed the
maximum rate of interest permitted to be charged by any Lender to Borrower under
applicable law, then, during such time as such rate of interest would be deemed
excessive, that portion of each sum paid attributable to that portion of such
interest rate that exceeds the maximum rate of interest so permitted shall be
deemed a voluntary prepayment of principal without penalty (including, without
limitation, prepayment fees required pursuant to Section 4.3(a) hereof). As
used herein, the term "applicable law" shall mean the law in effect as of the
date hereof, provided, however, that in the event there is a change in the law
which results in a higher permissible rate of interest, then this Agreement and
the Notes shall be governed by such new law as of its effective date.
Section 4.12. Replacement of Lenders. If any of the Lenders shall make a
notice or demand upon the Borrower pursuant to Section 4.5, Section 4.6, or
Section 4.11 basEd on circumstances or laws which are not generally applicable
to the Lenders organized under the laws of the United States or any State
thereof, the Borrower shall have the right to replace such Lender with an
Eligible Assignee selected by the Borrower and approved by the Agent. In such
event the assignment shall take place on a date set by the Agent at which time
the assigning Lender and the Eligible Assignee shall enter into an Assignment
and Acceptance as contemplated by Section 18.1 (and clause (d) thereof shall
not be applicable) and the assigning Lender shall receive from the Eligible
Assignee or the Borrower a sum equal to the outstanding principal amount of the
Loans owed to the assigning Lender together with accrued interest thereon plus
the accrued Facility Fee under Section 4.2(a) allocated to the assigning
Lender, plus all other amounts then due to the assigning Lender hereunder
(including any Eurocurrency Prepayment Fees, any amounts under Section 4.5,
Section 4.6 or Section 4.11 and indemnity amounts).
Section 4.13. Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of the Loans made by it (other
than a Competitive Bid Loan), or the participations in L/C Obligations or in
Swing Line Loans held by it resulting in such Lender's receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the Agent of
such fact, and (b) purchase (for cash at face value)
55
participations in the Loans and sub-participations in Tranche A Letter of Credit
Obligations, Tranche B Letter of Credit Obligations and Swing Line Loans of the
other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:
(a) if any such participations or sub-participations are purchased
and all or any portion of the payment giving rise thereto is recovered,
such participations or sub-participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest;
and
(b) the provisions of this section shall not be construed to apply
to (x) any payment made by a Borrower pursuant to and in accordance with
the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation
in any of its Loans or sub-participations in Tranche A Letter of Credit
Obligations, Tranche B Letter of Credit Obligations or Swing Line Loans to
any assignee or participant, other than to the Borrower or any Subsidiary
thereof (as to which the provisions of this section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against
the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
Section 4.14. Alternative Currencies.
(a) Request for Alternative Currencies. In the event that the
Borrower requests any Tranche B Loans be made as Eurocurrency Rate Loans
in an Alternative Currency pursuant to Section 2.5, the Tranche B Loan
proposed to be made under Section 2.5 shall be in an amount not less than
the applicablE Alternative Currency Equivalent of the minimum borrowing
amounts set forth in Section 2.5; provided, that after giving effect to
the making of such Loan, the sum of (a) the aggregate Tranche B
Obligations and (b) the aggregate Tranche B Letter of Credit Obligations
shall not exceed the Tranche B Commitments at the time of such Loan.
Subject to the foregoing and to the satisfaction of the terms and
conditions of Section 11, each Tranche B Loan requested to be made in an
Alternative Currency will be made on the date specified therefor in the
Loan Request and, upon being so made, will have the Interest Period
requested in the Loan Request.(b) Denominations. In the event that any
portion of the funds available under the terms of this Agreement is
denominated in an Alternative Currency, the Dollar Equivalent of such
portion of the funds shall be calculated pursuant to the definition of
"Dollar Equivalent." The amount so determined shall then be added to the
amount already outstanding in Dollars for the purpose of determining the
remaining availability of funds under Section 2.1 and Section 14.4(a)
and any required repayments under Section 14.4(c).
(c) Repayment. The Agent shall, on each Revaluation Date, calculate
the Dollar Equivalent of all Alternative Currency Loans. If at any such
time the Dollar
56
Equivalent of the aggregate principal amount outstanding of the sum of (i)
all Tranche B Obligations and (ii) all Tranche B Letter of Credit
Obligations shall exceed the lesser of $50,000,000 or the Tranche B
Commitments due to currency fluctuations, the Borrower shall, upon demand
by the Agent, pay or cause to be paid within three (3) Business Days of
any such demand made by the Agent, such amounts as are sufficient to
eliminate such excess and to reduce the Dollar Equivalent of the aggregate
principal amount outstanding of the sum of (x) the Tranche B Obligations
and (y) the Tranche B Letters of Credit Obligations to an amount equal to
the lesser of $50,000,000 or the amount of the Tranche B Commitments.
(d) Funding. Each Lender may make any Eurocurrency Rate Loan
denominated in an Alternative Currency by causing any of its domestic or
foreign branches or foreign affiliates to make such Eurocurrency Rate Loan
(whether or not such branch or affiliate is named as a lending office on
the signature pages hereof); provided that in such event the obligation of
the Borrower to repay such Eurocurrency Rate Loan shall nevertheless be to
such Lender and shall, for all purposes of this Agreement (including
without limitation for purposes of the definition of "REQUISITE LENDERS")
be deemed made by such Lender, to the extent of such Eurocurrency Rate
Loan, for the account of such branch or affiliate.
Section 5. UNENCUMBERED PROPERTIES; NO LIMITATION ON RECOURSE.
Section 5.1. Unencumbered Properties and Unencumbered Development
Properties. The Borrower represents and warrants that each of the Real Estate
Assets listed on Schedule 1.1(a) will on the Effective Date either (i) satisfy
all of the conditions set forth in the definition of Unencumbered Property or
(ii) satisfy all of the conditions set forth in the definition of Unencumbered
Development Property. From time to time during the term of this Agreement
additional Real Estate Assets may become Unencumbered Properties or Unencumbered
Development Properties and certain Real Estate Assets which previously satisfied
the conditions set forth in the definition of Unencumbered Property or in the
definition of Unencumbered Development Property may cease to be Unencumbered
Properties or Unencumbered Development Properties by virtue of property
dispositions, creation of Liens or other reasons. There shall be attached to
each Compliance Certificate delivered pursuant to Section 7.4(d) or Section
7.13 an updated listing of the Unencumbered Properties and Unencumbered
Development PropertieS relied upon by the Borrower in computing the Value of All
Unencumbered Properties and the Adjusted Net Operating Income of the
Unencumbered Properties (before reserves are deducted) stated in such Compliance
Certificate. Compliance Certificates delivered pursuant to Section 2.5(a),
Section 2.9(b), Section 2.10(k) or Section 11.1 may, at Borrower's option,
include an updated listing of the Unencumbered Properties and Unencumbered
Development Properties and shall include such updated listing whenever a
redetermination of the Value of All Unencumbered Properties based on such an
updated listing would result in a decrease by more than $50,000,000 (from that
shown on the most recently delivered Compliance Certificate) in the Value of All
Unencumbered Properties by virtue of property dispositions, creation of Liens or
other reasons.
Section 5.2. Waivers by Requisite Lenders. If any Real Estate Asset fails
to satisfy any of the requirements contained in the definition of Unencumbered
Property or the definition of
57
Unencumbered Development Property then the applicable Real Estate Asset may
nevertheless be deemed to be Unencumbered Property or an Unencumbered
Development Property hereunder if the Requisite Lenders grant the necessary
waivers and vote to accept such Real Estate Asset as an Unencumbered Property or
an Unencumbered Development Property.
Section 5.3. Rejection of Unencumbered Properties and Unencumbered
Development Properties. If at any time the Agent properly determines that any
Real Estate Asset listed as an Unencumbered Property or an Unencumbered
Development Property by the Borrower does not satisfy all of the requirements of
the definition of Unencumbered Property or of Unencumbered Development Property,
as applicable (to the extent not waived by the Requisite Lenders pursuant to
Section 5.2) it may reject an Unencumbered Property or an Unencumbered
Development Property by notice to the Borrower and if the Agent so requests the
Borrower shall revise the applicable Compliance Certificate to reflect the
resulting change in the Value of All Unencumbered Properties and the Adjusted
Net Operating Income of the Unencumbered Properties.
Section 5.4. Change in Circumstances. If at any time during the term of
this Agreement Borrower becomes aware that any of the representations contained
in Section 6 are no longer accurate in any material respect with respect to any
Unencumbered Property or any Unencumbered Development Property, it will promptly
so notify the Agent and either request a waiver pursuant to Section 5.2 or
confirm that such Real Estate Asset is no longer an Unencumbered Property or an
Unencumbered Development Property. If any waiver so requested is not granted by
the Requisite Lenders within ten (10) Business Days the Agent shall reject the
applicable Unencumbered Property or Unencumbered Development Property pursuant
to Section 5.3.
Section 5.5. No Limitation on Recourse. The Obligations are full recourse
obligations of the Borrower and, to the extent provided in the Guaranty, of the
Company and the other Guarantors, and all of their respective Real Estate Assets
and other properties shall be available for the indefeasible payment in full in
cash and performance of the Obligations. Notwithstanding anything to the
contrary contained herein, the trustees of Liberty Property Trust shall have no
personal liability of any nature under this document. The Agent and the Lenders
shall look solely to the assets of Liberty Property Trust to satisfy any
liability or recourse against Liberty Property Trust hereunder.
Section 5.6. Additional Guarantors. If Borrower desires that a Real
Estate Asset owned by a Related Company which is not previously a Guarantor
become an Unencumbered Property or an Unencumbered Development Property, then
provided that the applicable Related Company is formed under the laws of one of
the United States and is at least 85% owned by Borrower, such Related Company
may become a Guarantor upon delivery to the Agent of the following, all in form
and substance reasonably satisfactory to the Agent: (a) a Joinder Agreement in
substantially the form of Exhibit L hereto, (b) good standing certificates,
general partner certificates, secretary certificates, opinions of counsel and
such other documents as may be reasonably requested by the Agent. The Agent
shall provide copies of said documents to the Lenders.
Section 6. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent and each of the Lenders as follows:
Section 6.1. Authority; Etc.
58
(a) Organization; Good Standing. The Company (i) is a Maryland real
estate investment trust duly organized, validly existing and in good
standing under the laws of the State of Maryland, (ii) has all requisite
power to own its properties and conduct its business as now conducted and
as presently contemplated, and (iii) to the extent required by law is in
good standing as a foreign entity and is duly authorized to do business in
the States in which the Unencumbered Properties and the Unencumbered
Development Properties are located and in each other jurisdiction where
such qualification is necessary except where a failure to be so qualified
in such other jurisdiction would not have a Materially Adverse Effect. The
Borrower is a Pennsylvania limited partnership, and each Guarantor is a
limited partnership or a Pennsylvania corporation, and each such entity is
duly organized, validly existing and in good standing under the laws of
the State of its formation as shown on Schedule 3.1(a), has all requisite
power to own its properties and conduct its business as presently
contemplated and is duly authorized to do business in the States in which
the Unencumbered Properties and the Unencumbered Development Properties
owned by it are located and in each other jurisdiction where such
qualification is necessary except where a failure to be so qualified in
such other jurisdiction would not have a Material Adverse Effect.
(b) Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower or any
Guarantor is to become a party and the transactions contemplated hereby
and thereby (i) are within the authority of the Borrower and each such
Guarantor, (ii) have been duly authorized by all necessary proceedings on
the part of the Borrower, such Guarantor and the Company as general
partner of Borrower, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to
which the Borrower, any Guarantor or the Company is subject or any
judgment, order, writ, injunction, license or permit applicable to the
Borrower, any Guarantor or the Company and (iv) do not conflict with any
provision of the Borrower's partnership agreement, the Company's
declaration of trust, charter documents or bylaws, the partnership
agreement, charter documents or bylaws of any of the Guarantors, or any
agreement (except agreements as to which such a conflict would not result
in a Material Adverse Effect) or other instrument binding upon, the
Borrower or the Company or to which any of their properties are subject.
The execution, delivery and performance of the Guaranty and the other Loan
Documents to which the Company is to become a party and the transactions
contemplated hereby and thereby (i) are within the authority of the
Company, (ii) have been duly authorized by all necessary proceedings on
the part of the Company, (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which the Company is subject or any judgment, order, writ,
injunction, license or permit applicable to the Company and (iv) do not
conflict with any provision of the Company's charter documents or bylaws,
partnership agreement, declaration of trust, or any agreement or
instrument (except agreements or instruments as to which such a conflict
would not result in a Material Adverse Effect) binding upon the Company or
to which any of the Company's properties are subject.
(c) Enforceability. The execution and delivery of this Agreement and
the other Loan Documents to which the Borrower is or is to become a party
will result in
59
valid and legally binding obligations of the Borrower enforceable against
it in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and general equitable
principles. The execution and delivery of the Guaranty and the other Loan
Documents to which the Company is or is to become a party will result in
valid and legally binding obligations of the Company enforceable against
the Company in accordance with the respective terms and provisions hereof
and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors rights and general
equitable principles.
Section 6.2. Governmental Approvals and Consents. The execution, delivery
and performance by the Borrower, the Company and each other Guarantor of this
Agreement and the other Loan Documents to which the Borrower, the Company or
such other Guarantor is or is to become a party and the transactions
contemplated hereby and thereby do not require the Borrower, the Company or any
Guarantor to obtain the approval or consent of, or require the filing by the
Borrower, the Company or any Guarantor with, any governmental agency or
authority, or any third party, other than those already obtained or made.
Section 6.3. Title to Properties.
(a) Either the Borrower or a Guarantor holds good and clear record
and marketable fee simple title to the Unencumbered Properties and the
Unencumbered Development Properties, subject to no Liens except for the
Permitted Liens.
(b) Except as indicated on Schedule 6.3 hereto, the Borrower owns
all of the properties reflected in the balance sheet of the Borrower as at
the Balance Sheet Date or acquired since that date (except properties sold
or otherwise disposed of in the ordinary course of business since that
date), subject to no rights of others, including any mortgages, leases,
conditional sales agreements, title retention agreements, liens or other
encumbrances except Permitted Liens.
Section 6.4. Financial Statements. The following financial statements
have been furnished to each of the Lenders.
(a) A balance sheet of the Company as of December 31, 2004, and a
statement of operations and statement of cash flows of the Company for the
fiscal year then ended, a balance sheet of the Borrower as of the Balance
Sheet Date, and a statement of operations and statement of cash flows of
the Borrower for the fiscal year then ended, all accompanied by an
auditor's report prepared without qualification by Ernst & Young LLP. Such
balance sheets and statements of operations and of cash flows have been
prepared in accordance with Generally Accepted Accounting Principles and
fairly present the financial condition of the Borrower and the Company,
respectively as at the close of business on the date thereof and the
results of operations and cash flows for the fiscal year then ended. There
are no contingent liabilities of the Borrower or the Company,
respectively, as of such date involving material amounts, known to the
officers of the Company not disclosed in said balance sheet and the
related notes thereto which are
60
required to be so disclosed therein in accordance with generally accepted
accounting principles.
(b) A balance sheet and a statement of operations and statement of
cash flows of the Company and a balance sheet and a statement of
operations and statement of cash flows of the Borrower for each of the
fiscal quarters of the Company ended since December 31, 2004 for which the
Company has filed form l0-Q with the SEC, which the Company's Responsible
Officer certifies has been prepared in accordance with Generally Accepted
Accounting Principles (except to the extent otherwise described in such
Form 10-Q) consistent with those used in the preparation of the annual
audited statements delivered pursuant to paragraph (a) above and fairly
represents the financial condition of the Company and the Borrower,
respectively, as at the close of business on the dates thereof and the
results of operations and of cash flows for the fiscal quarters then ended
(subject to year-end adjustments). There are no contingent liabilities of
the Borrower or the Company as of such dates involving material amounts,
known to the officers of the Company, not disclosed in such balance sheets
and the related notes thereto which are required to be so disclosed
therein in accordance with generally accepted accounting principles.
(c) A statement prepared by the Borrower which sets forth the total
Net Operating Income of the Unencumbered Properties for the fiscal quarter
of the Borrower ended on the Balance Sheet Date.
Section 6.5. No Material Changes, Etc. Since the Balance Sheet Date,
there has occurred no material adverse change in the financial condition or
assets or business of the Borrower as shown on or reflected in the balance sheet
of the Borrower as of the Balance Sheet Date, or the statement of income for the
fiscal year then ended, other than changes in the ordinary course of business
that have not had any Material Adverse Effect either individually or in the
aggregate.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower possesses
all franchises, patents, copyrights, trademarks, trade names, licenses and
permits, and rights in respect of the foregoing, adequate for the conduct of its
business substantially as now conducted without known conflict with any rights
of others, except to the extent the Borrower's failure to possess the same does
not have a Material Adverse Effect.
Section 6.7. Litigation. Except as listed and described on Schedule 6.7
hereto, there are no actions, suits, proceedings or investigations of any kind
pending or, to Borrower's knowledge, threatened against the Borrower, the
Company, any other Guarantor or any of the Related Companies before any court,
tribunal or administrative agency or board that, if adversely determined, might,
either in any case or in the aggregate, have a Material Adverse Effect or
materially impair the right of the Borrower, the Company, any other Guarantor or
any of the Related Companies to carry on business substantially as now conducted
by it, or which question the validity of this Agreement or any of the other Loan
Documents, any action taken or to be taken pursuant hereto or thereto, or which
would result in a Lien on any Unencumbered Property or any Unencumbered
Development Property, or which will materially adversely affect the ability of
the Borrower, any Guarantor or the Company to pay and perform the Obligations in
the manner contemplated by this Agreement and the other Loan Documents.
61
Section 6.8. No Materially Adverse Contracts, Etc. Neither the Borrower
nor the Company is subject to any charter, trust or other legal restriction, or
any judgment, decree, order, rule or regulation that has or is expected in the
future to have a Material Adverse Effect. Neither the Borrower nor the Company
is a party to any contract or agreement that has or is expected, in the judgment
of the Company's officers, to have any Material Adverse Effect.
Section 6.9. Compliance With Other Instruments, Laws, Etc. Neither the
Borrower nor the Company is in violation of any provision of the Borrower's
partnership agreement or of the Company's charter documents, by-laws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that is reasonably
likely to result in the imposition of substantial penalties or have a Material
Adverse Effect.
Section 6.10. Tax Status. Each of the Borrower and the Company (a) has
made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject, and (b)
has paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim.
Section 6.11. Event of Default. No Default or Event of Default has
occurred and is continuing.
Section 6.12. Investment Company Act. Neither the Borrower nor the
Company is an "investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
Section 6.13. Absence of Financing Statements, Etc. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage, equipment
lease, financing lease, option, encumbrance or other document existing, filed or
recorded with any filing records, registry, or other public office, that
purports to cover, affect or give notice of any present or possible future lien
or encumbrance on, or security interest in, any Unencumbered Property or any
Unencumbered Development Property, except Permitted Liens.
Section 6.14. Status of the Company. The Company (i) is a REIT, (ii) has
not revoked its election to be a REIT, (iii) has not engaged in any "prohibited
transactions" as defined in Section 856(b)(6)(iii) of the Code (or any successor
provision thereto), and (iv) for its current "tax year" (as defined in the Code)
is, and for all prior tax years subsequent to its election to be a real estate
investment trust has been, entitled to a dividends paid deduction which meets
the requirements of Section 857 of the Internal Revenue Code. The common stock
of the Company is listed for trading on the New York Stock Exchange.
Section 6.15. Certain Transactions. Except as set forth on Schedule 6.15
hereto, as of the date hereof, none of the officers or employees of the
Borrower, any Guarantor or the Company are presently a party to any transaction
with the Borrower, any Guarantor or the Company (other than for services as
employees, officers and trustees) , including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or
62
personal property to or from, or otherwise requiring payments to or from any
officer, trustee or such employee or, to the knowledge of the Borrower and the
Company, any corporation, partnership, trust or other entity in which any
officer, trustee or any such employee or natural Person related to such officer,
trustee or employee or other Person in which such officer, trustee or employee
has a direct or indirect beneficial interest has a substantial interest or is an
officer or trustee.
Section 6.16. Benefit Plans; Multiemployer Plans; Guaranteed Pension
Plans. As of the date hereof as to any Employee Benefit Plan, Multiemployer Plan
or Guaranteed Pension Plan, neither the Borrower nor any ERISA Affiliate
maintains or contributes to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, except as may be set forth on Schedule 6.16. Any
Employee Benefit Plan or Guaranteed Pension Plan that the Borrower or any ERISA
Affiliate maintains or contributes to as of the date of this Agreement or
hereafter is or shall be, as applicable, maintained and operated in compliance
with Section 7.17 hereof.
Section 6.17. Regulations U and X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 6.18. Environmental Compliance. The Borrower has caused Phase I
environmental assessments to be conducted with respect to the Real Estate
Assets. Based on the information contained in the reports received by Borrower
with respect to said environmental assessments, Borrower makes the following
representations and warranties:
(a) Except as may be set forth on Schedule 6.18, to the best of
Borrower's knowledge none of the Borrower, the Company, any other
Guarantor, any of the Related Companies or any operator of the Real Estate
or any portion thereof, or any operations thereon is in violation, or
alleged material violation, of any judgment, decree, order, law, license,
rule or regulation pertaining to environmental matters (hereinafter
collectively referred to as the "ENVIRONMENTAL LAWS"), including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or
local statute, regulation, ordinance, order or decree relating to health,
safety or the environment, including, without limitation, the
environmental statutes, regulations, orders and decrees of the States in
which any of the Unencumbered Properties or any of the Unencumbered
Development Properties may be located, which violation would have a
Material Adverse Effect or would materially decrease the value of an
Unencumbered Property or an Unencumbered Development Property. The
foregoing, representations and warranties that relate to Unencumbered
Properties or Unencumbered Development Properties shall be subject to the
last sentence of Section 12.1(e).
(b) Except as set forth on Schedule 6.18 attached hereto, none of
Borrower, any Guarantor, the Company or the Related Companies has received
written notice from any third party including, without limitation any
federal, state or local governmental
63
authority with respect to any of the Unencumbered Properties or any of the
Unencumbered Development Properties or otherwise if the same would have a
Material Adverse Effect, (i) that it has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 300 Appendix B (1986) ; (ii) that
any hazardous waste, as defined by 42 U.S.C. Section 9601(5), any
hazardous substances as defined by 42 U.S.C. Section 9601(14), any
pollutant or contaminant as defined by 42 U.S.C. Section 9601(33) or any
toxic substances, oiL or hazardous materials or other chemicals or
substances regulated by any Environmental Laws ("Hazardous Materials")
which it has generated, transported or disposed of have been found at any
site at which a federal, state or local agency or other third party has
conducted or has ordered that the Borrower, any Guarantor, the Company or
any of the Related Companies conduct a remedial investigation, removal or
other response action pursuant to any Environmental Law; or (iii) that it
is or shall be a named party to any claim, action, cause of action,
complaint, or legal or administrative proceeding (in each case, contingent
or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Materials. The foregoing, representations and
warranties that relate to Unencumbered Properties or Unencumbered
Development Properties shall be subject to the last sentence of Section
12.1(e).
(c) Except as set forth on Schedule 6.18 attached hereto and except
to the extent the same would neither have a Material Adverse Effect nor
materially decrease the value of an Unencumbered Property or an
Unencumbered Development Property, (i) to the best of Borrower's knowledge
no portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Materials except in material compliance
with applicable Environmental Laws; and except as set forth on Schedule
6.18, no underground tank or other underground storage receptacle for
Hazardous Materials is located on any portion of the Real Estate; (ii) in
the course of any activities conducted by the Borrower, any Guarantor, the
Company, any of the Related Companies or the operators of any Real Estate,
or to the best of Borrower's knowledge, any ground or space tenants on any
Real Estate, no Hazardous Materials have been generated or are being used
on the Real Estate except in material compliance with applicable
Environmental Laws; (iii) there has been no present, or to the best of
Borrower's knowledge past, releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, disposing or dumping
(a "RELEASE") or threatened Release of Hazardous Materials on, upon, into
or from any Real Estate; (iv) to the best of Borrower's knowledge, there
have been no Releases on, upon, from or into any real property in the
vicinity of any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on; and (v) to the best of
Borrower's knowledge, any Hazardous Materials that have been generated on
any of the Real Estate have been transported off-site only by carriers
having an identification number issued by the EPA, treated or disposed of
only by treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of the Borrower's knowledge,
operating in material compliance with such permits and applicable
Environmental Laws. Notwithstanding that any representation contained
herein may be limited to the
64
knowledge of the Borrower, any such limitation shall not affect the
covenants specified in Section 7.10 or elsewhere in this Agreement. The
foregoing, representations and warranties that relate to Unencumbered
Properties or Unencumbered Development Properties shall be subject to the
last sentence of Section 12.1(e).
(d) None of the Real Estate is or shall be subject to any applicable
environmental clean-up responsibility law or environmental restrictive
transfer law or regulation, solely by virtue of the transactions set forth
herein and contemplated hereby.
Section 6.19. Subsidiaries and Affiliates. As of the date hereof, the
Borrower has no Subsidiaries except for the Related Companies listed on Schedule
1.3 and does not have an ownership interest in any entity whose financial
statements are not consolidated with the Borrower's except for the
Unconsolidated Entities listed on Schedule 1.3. Except as set forth on Schedule
6.19, as of the date hereof: (a) the Company is not a partner in any partnership
other than Borrower and is not a member of any limited liability company and (b)
the Company owns no material assets other than its partnership interest in
Borrower. Schedule 6.19 shall be updated annually at the time of delivery of the
financial statements pursuant to Section 7.4(a) to reflect any changes,
including any subsequent Guarantors and their Subsidiaries, if any.
Section 6.20. Loan Documents. All of the representations and warranties
of the Borrower, any Guarantor or the Company made in the other Loan Documents
or any document or instrument delivered or to be delivered to the Agent or the
Lenders pursuant to or in connection with any of such Loan Documents are true
and correct in all material respects.
Section 6.21. Buildings on the Unencumbered Properties. Except as set
forth on Schedule 6.21, to the best of Borrower's knowledge there are no
material defects in the roof, foundation, structural elements and masonry walls
of the Buildings on the Unencumbered Properties or Unencumbered Development
Properties or their heating, ventilating and air conditioning, electrical,
sprinkler, plumbing or other mechanical systems which would materially decrease
the value of such Unencumbered Property or Unencumbered Development Property.
The foregoing, representations and warranties that relate to Unencumbered
Properties or Unencumbered Development Properties shall be subject to the last
sentence of Section 12.1(e).
Section 6.22. Insurance. The insurance policies and programs in effect as
of the Effective Date and thereafter with respect to the Real Estate Assets,
assets and business of the Company, the Borrower and the Related Companies are
in compliance with Section 7.7. Schedule 6.22 accurately sets forth as of the
date hereof all insurance policies currently maintained by the Company, the
Borrower and the Related Companies.
Section 6.23. Disclosure. No report, financial statement, certificate or
other information furnished (whether in writing or orally) by or on behalf of
the Borrower or the Company to the Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such
65
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
Section 6.24. Solvency. After giving effect to the Loans to be made or
Letters of Credit to be issued, and the disbursement of the proceeds of such
Loans pursuant to the Borrower's instructions, each of the Borrower and the
Company is Solvent.
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER. Borrower covenants and
agrees as follows, so long as any Loan or Note or Letter of Credit (or interest
or fees thereon) is outstanding or the Lenders have any obligations to make
Loans or issue or renew any Letters of Credit:
Section 7.1. Punctual Payment. The Borrower unconditionally agree to duly
and punctually pay the principal and interest on the Loans and all other amounts
provided for in the Notes, this Agreement, and the other Loan Documents all in
accordance with the terms of the Notes, this Agreement and the other Loan
Documents.
Section 7.2. Maintenance of Office. The Borrower will maintain its chief
executive office in Malvern, Pennsylvania or at such other place in the United
States Of America as the Borrower shall designate upon written notice to the
Agent to be delivered within fifteen (15) days of such change, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
Section 7.3. Records and Accounts. The Borrower will keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with Generally Accepted Accounting Principles.
Section 7.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrower, the audited
balance sheets of the Borrower and of the Company at the end of such year,
and the related audited statements of operations and statements of cash
flows and Funds From Operations and taxable income for such year, each
setting forth in comparative form the figures for the previous fiscal year
and all such statements to be in reasonable detail, prepared in accordance
with Generally Accepted Accounting Principles on a consolidated basis
including the Borrower and the Related Companies, and accompanied by an
auditor's report prepared without qualification by Ernst & Young LLP or by
another independent certified public accountant reasonably acceptable to
the Agent; provided, however, that for so long as the Borrower and the
Company are filing Form 10-K with the SEC, the delivery of a copy thereof
pursuant to paragraph (e) of this Section 7.4 shall be deemed to satisfy
this paragraph (a);
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters of the Borrower, copies of the unaudited balance sheets of the
Borrower and of the Company as at the end of such
66
quarter, and the related unaudited statements of operations and statements
of Funds From Operations and estimated taxable income for the portion of
the Borrower's fiscal year then elapsed, all in reasonable detail and
prepared in accordance with Generally Accepted Accounting Principles on a
consolidated basis including the Borrower and the Related Companies,
together with a certification by the principal financial or accounting
officer of the Company that the information contained in such financial
statements fairly presents the financial position of the Borrower and of
the Company on the date thereof (subject to year-end adjustments);
provided, however, that for so long as the Borrower and the Company are
filing Form 10-Q with the SEC, the delivery of a copy thereof pursuant to
paragraph (e) of this Section 7.4 shall be deemed to satisfy this
paragraph (b);
(c) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters and not later than ninety (90) days after the end of the last
fiscal quarter of each fiscal year of the Borrower, (i) copies of a
statement of the aggregate Net Operating Income for such fiscal quarter
for the Unencumbered Properties and a listing of such properties, prepared
on a basis consistent with the statements furnished pursuant to Section
6.4 (c) , and certified by the Company pursuant to a certificate signed on
the Company's behalf by a Responsible Officer of the Company and, (ii) at
the time of the annual financial statements referred to in subsection (a)
above, and, if requested by the Agent, at the time of quarterly financial
statements referred to in subsection (b) above, a statement setting forth
the Net Operating Income for such fiscal quarter for each Unencumbered
Property listed by address;
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement in the form of
Exhibit C hereto signed on the Company's behalf by a Responsible Officer
of the Company and setting forth in reasonable detail computations
evidencing compliance with the covenants contained herein and (if
applicable) reconciliations to reflect changes in Generally Accepted
Accounting Principles since the Balance Sheet Date, and including an
updated Schedule 6.19, if required under Section 6.19;
(e) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Company, copies of the
Form l0-K statement filed with the Securities and Exchange Commission
("SEC") for such fiscal year, and as soon as practicable, but in any event
not later than forty-five (45) days after the end of each fiscal quarter,
copies of the Form l0-Q statement filed with the SEC for such fiscal
quarter, provided that in either case if the SEC has granted an extension
for the filing of such statements, Borrower shall deliver such statements
to the Agent simultaneously with the filing thereof with the SEC;
(f) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the stockholders of the Borrower, and copies of all annual, regular,
periodic and special reports and registration statements which the
Borrower may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required
to be delivered to the Agent pursuant hereto;
67
(g) promptly, and in any event within five Business Days after
receipt thereof by any Related Company or any Subsidiary thereof, copies
of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Related Company or
any Subsidiary thereof; and
(h) from time to time such other financial data and information as
the Agent may reasonably request including, without limitation, financial
statements of any Unconsolidated Entities.
Section 7.5. Notices.
(a) Defaults. The Borrower will promptly notify the Agent in writing
of the occurrence of any Default or Event of Default of which a
Responsible Officer is aware. If any Person shall give any notice or take
any other action in respect of a claimed default (whether or not
constituting a Default or an Event of Default under this Agreement) under
any note, evidence of Indebtedness, indenture or other obligation to which
or with respect to which the Borrower, any Guarantor, the Company or any
of the Related Companies is a party or obligor, whether as principal or
surety, and if the principal amount thereof exceeds $5,000,000, and such
default would permit the holder of such note or obligation or other
evidence of Indebtedness to accelerate the maturity thereof, the Borrower
shall forthwith give written notice thereof to the Agent and each of the
Lenders, describing the notice or action and the nature of the claimed
default.
(b) Environmental Events. The Borrower will promptly notify the
Agent in writing of any of the following events: (i) upon Borrower's
obtaining knowledge of any violation of any Environmental Law regarding an
Unencumbered Property or an Unencumbered Development Property or any Real
Estate or Borrower's operations which violation is reasonably likely to
have a Material Adverse Effect; (ii) upon Borrower's obtaining knowledge
of any potential or known Release, or threat of Release, of any Hazardous
Substance at, from, or into an Unencumbered Property or an Unencumbered
Development Property or any Real Estate 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 affect the value of
such Unencumbered Property or Unencumbered Development Property or which
could have a Material Adverse Effect; (iii) upon Borrower's receipt of any
notice of violation of any Environmental Laws or of any Release or
threatened Release of Hazardous Substances, 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) Borrower's or any Person's operation of
an Unencumbered Property or an Unencumbered Development Property or any
Real Estate if the same would have a Material Adverse Effect, (B)
contamination on, from or into an Unencumbered Property or an Unencumbered
Development Property or any Real Estate if the same would have a Material
Adverse Effect, or (C) investigation or remediation of off-site locations
at which
68
Borrower or any of its predecessors are alleged to have directly or
indirectly disposed of Hazardous Substances; or (iv) upon Borrower'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 Substances with respect to which
Borrower, any Guarantor, the Company or any of the Related Companies may
be liable or for which a lien may be imposed on an Unencumbered Property
or an Unencumbered Development Property.
(c) Notification of Liens Against Unencumbered Properties and
Unencumbered Development Properties or Other Material Claims. The Borrower
will, promptly after becoming aware thereof, notify the Agent in writing
of any Liens (except Permitted Liens) placed upon or attaching to any
Unencumbered Properties or any Unencumbered Development Properties or of
any other setoff, claims (including environmental claims), withholdings or
other defenses which could have a Material Adverse Effect.
(d) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware
of any litigation, proceedings or material governmental investigations
threatened in writing or any pending litigation, proceedings and material
governmental investigations affecting any of the Unencumbered Properties
or any of the Unencumbered Development Properties or affecting Borrower,
any Guarantor, the Company or any of the Related Companies or to which the
Borrower, any Guarantor, the Company or any of the Related Companies is or
is to become a party involving an uninsured claim (or as to which the
insurer reserves rights) against the Borrower, any Guarantor, the Company
or any of the Related Companies that at the time of giving of notice could
reasonably be expected to have a Materially Adverse Effect, and stating
the nature and status of such litigation, proceedings or governmental
investigation. The Borrower will give notice to the Agent, in writing, in
form and detail reasonably satisfactory to the Agent, within ten (10) days
of any judgment not covered by insurance, final or otherwise, against the
Borrower in an amount in excess of $1,000,000.
(e) Notice of Rating Changes. The Borrower will promptly notify the
Agent in writing of the occurrence of any change in the Moody's Rating, in
the S&P Rating or in the Fitch Rating.
(f) Notice of ERISA Reportable Events. The Borrower will promptly
notify the Agent in writing of the occurrence of any ERISA Reportable
Event.
(g) Notice of Changes in Accounting or Financial Reporting
Practices. The Borrower will promptly notify the Agent in writing of the
occurrence of any material change in accounting policies or financial
reporting practices by the Borrower or any Related Company.
Documents required to be delivered pursuant to Section Section 7.4(a),
(b), (e) or (f) (to the extent any such documents are included in materials
otherwise fileD with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on
69
which the Borrower posts such documents, or provides a link thereto on the
Borrower's website on the Internet at the website address listed in Section 19;
or (ii) on which such documents are posted on the Borrower's behalf on an
Internet or intranet website, if any, to which each Lender and the Agent have
access (whether a commercial, third-party website or whether sponsored by the
Agent); provided that: (i) the Borrower shall deliver paper copies of such
documents to the Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by the Agent or such Lender and (ii) the Borrower shall notify the Agent and
each Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
compliance certificates required by Section 11.1 to the Agent. Except for such
compliance certificates, the Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Agent and/or the Arranger
will make available to the Lenders materials and/or information provided by or
on behalf of the Borrower hereunder (collectively, "BORROWER MATERIALS") by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the "PLATFORM") and (b) certain of the Lenders may be "public-side"
Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities) (each, a "PUBLIC
LENDER"). The Borrower hereby agrees that (w) all Borrower Materials that are to
be made available to Public Lenders shall be clearly and conspicuously marked
"PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear
prominently on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," the Borrower shall be deemed to have authorized the Agent, the
Arranger, and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrower or its securities
for purposes of United States Federal and state securities laws; (y) all
Borrower Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (z) the Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked
"PUBLIC" as being suitable only for posting on a portion of the Platform not
designated "Public Investor."
Section 7.6. Existence; Maintenance of REIT Status; Maintenance of
Properties. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Maryland trust and
its status as a self administered REIT and the existence of Borrower as a
Pennsylvania limited partnership. The common shares of beneficial interest of
the Company will at all times be listed for trading on either the New York Stock
Exchange or one of the other major stock exchanges. The Borrower will do or
cause to be done all things necessary to preserve and keep in full force all of
its rights and franchises which in the judgment of the Borrower may be necessary
to properly and advantageously conduct the businesses being conducted by it, the
Company or any of the Related Companies. The Borrower (a) will cause all of the
properties used or useful in the conduct of the business of Borrower, the
Company or any of the Related Companies to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
(b) will cause to be made all
70
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (c) will continue to engage primarily in the businesses now
conducted by it and in related businesses.
Section 7.7. Insurance. With respect to the Real Estate Assets and other
properties and businesses of Borrower, the Guarantors and the Related Companies,
the Borrower will maintain or cause to be maintained insurance with financially
sound and reputable insurers against such casualties and contingencies as shall
be in accordance with the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts, containing such terms, in
such forms and for such periods as may be reasonable and prudent. With respect
to the Unencumbered Properties, such insurance will include all risk casualty
insurance for the replacement cost of all Buildings including loss of rents for
12 months and, to the extent available, flood insurance. With respect to the
Unencumbered Development Properties, such insurance will include all risk
builders risk insurance.
Section 7.8. Taxes. The Borrower will pay real estate taxes, other taxes,
assessments and other governmental charges against the Real Estate Assets before
the same become delinquent, and will duly pay and discharge, or cause to be paid
and discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its other properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its properties; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books adequate reserves with
respect thereto; and provided further that the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
Section 7.9. Inspection of Properties and Books. The Borrower shall
permit the Lenders, through the Agent or any of the Lenders' other designated
representatives, to visit and inspect any of the Unencumbered Properties and any
of the Unencumbered Development Properties, to examine the books of account of
the Borrower, the Company and the Related Companies (and to make copies thereof
and extracts therefrom) and to discuss the affairs, finances and accounts of the
Borrower with, and to be advised as to the same by, its officers, all at such
reasonable times and intervals as the Agent or any Lender may reasonably request
upon reasonable prior notice.
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will comply, and will cause each Guarantor and all Related Companies to
comply, with (a) all applicable laws and regulations now or hereafter in effect
wherever its business is conducted, including all Environmental Laws, (b) the
provisions of all applicable partnership agreements, charter documents and
by-laws, (c) all agreements and instruments to which it is a party or by which
it or any of its Real Estate Assets may be bound including the Leases, and (d)
all applicable decrees, orders, and judgments except (with respect to (a)
through (d) above) to the extent such non-compliance would not have a Material
Adverse Effect. If at any time any permit or authorization from any governmental
Person shall become necessary or required in order that
71
the Borrower, any Guarantor or the Company may fulfill or be in compliance with
any of its obligations hereunder or under any of the Loan Documents, the
Borrower will promptly take or cause to be taken all reasonable steps within the
power of the Borrower to obtain such authorization, consent, approval, permit or
license and furnish the Agent and the Lenders with evidence thereof.
Section 7.11. Use of Proceeds. Subject to the provisions of Section 2.5
hereof, the proceeds of the Loans shall be used by the Borrower for permitted
capitaL expenditures, and for working capital and other general corporate
purposes consistent with the covenants contained herein.
Section 7.12. INTENTIONALLY OMITTED.
Section 7.13. Notices of Significant Transactions. The Borrower will
notify the Agent in writing prior to the closing of any of the following
transactions pursuant to a single transaction or a series of related
transactions:
(a) The sale or transfer of one or more Real Estate Assets for an
aggregate sales price or other consideration of $75,000,000 or more.
(b) The creation of a Lien on, or the sale or transfer of, any
Unencumbered Property or Unencumbered Development Property or the sale of
any Subsidiary which owns an Unencumbered Property or Unencumbered
Development Property, if such Property's contribution to the Value of All
Unencumbered Properties (based on the most recently ended fiscal quarter
for which financial statements have been provided pursuant to Section
7.4) is $50,000,000 or more.
(c) The creation of Indebtedness of the Borrower or a Related
Company exceeding $100,000,000.
(d) The sale or transfer of the ownership interest of Borrower or
any of the Related Companies in any of the Related Companies or the
Unconsolidated Entities if the aggregate consideration to be received by
the Borrower or the Related Companies in connection with such transaction
exceeds $100,000,000.
Each notice given pursuant to this Section 7.13 shall be accompanied by a
Compliance Certificate including an updated list of Unencumbered Properties and
Unencumbered Development Properties and demonstrating in reasonable detail
compliance, after giving effect to the proposed transaction, with the covenants
contained in Section 9.1 through Section 9.8.
Section 7.14. Further Assurances. The Borrower will cooperate with the
Agent and the Lenders and execute such further instruments and documents and
perform such further acts as the Agent and the Lenders shall reasonably request
to carry out to their satisfaction the transactions contemplated by this
Agreement and the other Loan Documents.
Section 7.15. Environmental Indemnification. The Borrower covenants and
agrees that it will indemnify and hold the Agent and each Lender harmless from
and against any and all claims, expense, damage, loss or liability incurred by
the Agent or any Lender (including all reasonable
72
costs of legal representation incurred by the Agent or any Lender, but
excluding, as applicable, for the Agent or a Lender any claim, expense, damage,
loss or liability as a result of the gross negligence or willful misconduct of
the Agent or such Lender) relating to (a) any Release or threatened Release of
Hazardous Substances on any Unencumbered Property or any Unencumbered
Development Property or any Real Estate; (b) any violation of any Environmental
Laws with respect to conditions at any Unencumbered Property or any Unencumbered
Development Property or any Real Estate or the operations conducted thereon; or
(c) the investigation or remediation of off-site locations at which the Borrower
or its predecessors are alleged to have directly or indirectly disposed of
Hazardous Substances. It is expressly acknowledged by the Borrower that this
covenant of indemnification shall survive the payment of the Loans and shall
inure to the benefit of the Agent and the Lenders, and their successors and
assigns.
Section 7.16. Response Actions. The Borrower (and, to the extent relating
to Real Property owned by it, each Guarantor) covenants and agrees that if any
Release or, disposal of Hazardous Substances shall occur or shall have occurred
on any Unencumbered Property or any Unencumbered Development Property or any
other Real Estate if the same would have a Material Adverse Effect, the Borrower
(or the Guarantor that owns the applicable Real Estate) will cause the prompt
containment and removal of such Hazardous Substances and remediation of such
Unencumbered Property, Unencumbered Development Property or Real Estate as
necessary to comply with all Environmental Laws or to preserve the value of such
Unencumbered Property, Unencumbered Development Property or Real Estate to the
extent necessary to avoid a Material Adverse Effect.
Section 7.17. Employee Benefit Plans.
(a) Representation. The Borrower and its ERISA Affiliates do not
currently maintain or contribute to any Employee Benefit Plan, Guaranteed
Pension Plan or Multiemployer Plan, except as set forth on Schedule 6.16.
(b) Notice. The Borrower will obtain the consent of the Agent prior
to the establishment by the Borrower or any ERISA Affiliate of any
Guaranteed Pension Plan, or any other Employee Benefit Plan if the
establishment of such Plan could reasonably be expected to create material
liability for the Borrower.
(c) In General. Each Employee Benefit Plan maintained by the
Borrower or any ERISA Affiliate will be operated in compliance in all
material respects with the provisions of ERISA and, to the extent
applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions.
(d) Terminability of Welfare Plans. With respect to each Employee
Benefit Plan maintained by the Borrower or an ERISA Affiliate which is an
employee welfare benefit plan within the meaning of Section 3(1) or
Section 3(2)(B) of ERISA, the Borrower, or the ERISA Affiliate, as the
case may be, has the right tO terminate each such plan at any time (or at
any time subsequent to the expiration of any applicable bargaining
agreement) without liability other than liability to pay claims incurred
prior to the date of termination.
73
(e) Multiemployer Plans. Without the consent of the Agent, the
Borrower will not enter into, maintain or contribute to, any multiemployer
Plan.
(f) Unfunded or Underfunded Liabilities. The Borrower will not, at
any time, have accruing unfunded or underfunded liabilities with respect
to any Employee Benefit Plan (other than an Employee Benefit Plan which is
a "top-hat plan" that is eligible for the alternate method of compliance
with ERISA reporting and disclosure requirements provided in Department of
Labor regulation section 2520.104-23 and which could not reasonably be
expected to create material liability for the Borrower), Guaranteed
Pension Plan or Multiemployer Plan, or permit any condition to exist under
any Multiemployer Plan that would create a withdrawal liability.
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower (and,
to the extent provided herein, each Guarantor) covenants and agrees as follows,
so long as any Loan or Note or Letter of Credit (or interests or fees thereon)
is outstanding or the Lenders have any obligation to make any Loans or issue or
renew any Letters of Credit:
Section 8.1. Restrictions on Recourse IndebtedneSection Except with the
prior written consent of the Requisite Lenders, the Borrower will not, and the
Borrower will not permit any Guarantor or any of the Related Companies to
create, incur, assume, guarantee or become or remain liable, contingently or
otherwise, with respect to any Recourse Indebtedness described in any one or
more of the following paragraphs:
(a) Indebtedness that creates a violation of Section 9.4, Section
9.5, Section 9.6 or Section 9.7;
(b) Indebtedness that constitutes an Investment pursuant to the
definition of Investment, and that creates a violation of Section 8.2;
(c) Indebtedness that is prohibited by the terms of the Unsecured
Term Notes, for so long as the Unsecured Terms Notes remain outstanding;
or
(d) Indebtedness of the Borrower or a Related Company to the
Borrower or a Related Company (other than Indebtedness to a Guarantor)
that is not fully subordinated to the Obligations. For the purposes hereof
"fully subordinated" means (i) that no principal or interest on such
Indebtedness shall be paid if any Obligation that is due and payable
hereunder has not been paid and (ii) full subordination in the event of a
bankruptcy proceeding.
Section 8.2. Restrictions on Investments. The Borrower will not, and will
not permit any Guarantor or any of the Related Companies to make or permit to
exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America, Federal Home Loan Mortgage Corporation, Federal National
Mortgage Association or any agency or instrumentality of the United States
of America provided such obligations are backed by the full faith and
credit of the United States of America, that mature within one (1) year
from the date of purchase by the Borrower;
74
(b) demand deposits, certificates of deposit, money market accounts,
bankers acceptances, LIBOR time deposits and time deposits of United
States banks having total assets in excess of $1,000,000,000 or repurchase
obligations with a term of not more than 7 days with such banks for
underlying securities of the type described in clause (a) of this Section
8.2;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than " P I " if rated by Moody's
Investors Services, Inc., and not less than "A I " if rated by Standard
and Poor's and participations in short term commercial loans made to such
corporations by a commercial bank which provides cash management services
to the Borrower;
(d) Investments existing or contemplated on the date hereof and
listed on Schedule 8.2(d) hereto;
(e) Investments made in the ordinary course of the Borrower's
business in Interest Rate Contracts;
(f) Investments in Permitted Acquisitions;
(g) Investments in the following categories so long as the aggregate
amount, without duplication, of all Investments described in this
paragraph (g) does not exceed, at any time, thirty percent (30%) of Total
Asset Value and the aggregate amount of each of the following categories
of Investments does not exceed the specified percentage of Total Asset
Value set forth in the following table:
Category of Investment Maximum Percentage of Total Asset Value
- ------------------------------ ---------------------------------------
Permitted Developments 30%
Unconsolidated Entities 20%
Undeveloped Land 10%
Mortgages and Notes Receivable 10%
(h) Investments by the Borrower in one or more Guarantors or by a
Guarantor in the Borrower or one or more other Guarantors.
Section 8.3. Merger, Consolidation and Other Fundamental Changes. The
Borrower will not, and will not permit the Company or any of the Related
Companies to (i) become a party to any merger or consolidation, or (ii) agree to
or effect any property acquisition or stock acquisition (other than Permitted
Acquisitions in compliance with the other terms of this Agreement) , or (iii)
enter into any joint venture or invest in any Unconsolidated Entity unless prior
to such transaction the Borrower has provided the Agent with a notice describing
such transaction and, if
75
the reasonably expected financial impact on the Borrower as reflected on its
balance sheet arising from all transactions described in this Section 8.3 shall
exceed 20% of Total Asset Value, the Borrower shall have obtained the prior
consent of the Requisite Lenders provided, however, that this Section 8.3 shall
not be applicable to (A) any merger, consolidation or transfer among the
Borrower's wholly-owned subsidiaries other than Guarantors, (B) any merger or
consolidation of any one or more Guarantors into the Borrower or another
Guarantor or any transfer from a Guarantor to the Borrower or another Guarantor,
or (C) any merger or consolidation with respect to which all of the following
are satisfied: (1) the surviving entity is Borrower, the Company or any other
Guarantor and there is no substantial change in senior management of the
Company, (2) the other entity or entities involved in such merger or
consolidation are engaged in the same line of business as Borrower, and (3)
following such transaction, the Borrower and the Company will not be in breach
of any of the covenants, representations or warranties of this Agreement. Except
as set forth on Schedule 6.19, the Company will not own or acquire any material
assets other than its partnership interest in the Borrower. If the Company is
the surviving entity in a merger, the assets acquired pursuant thereto will be
immediately transferred to the Borrower.
Section 8.4. Sale and Leaseback. The Borrower will not enter into any
arrangement, directly or indirectly, whereby the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower intends to use for substantially the same
purpose as the property being sold or transferred. The Borrower will not permit
the Company or any of the Related Companies to enter into any such arrangement.
Section 8.5. Compliance with Environmental Laws. The Borrower will not
do, and will not permit the Company or any of the Related Companies to do, any
of the following: (a) use any of the Real Estate or any portion thereof as a
facility for the handling, processing, storage or disposal of Hazardous
Materials except for immaterial amounts of Hazardous Materials used in the
routine maintenance and operation of the Real Estate and in compliance with
applicable law, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous Materials
which is reasonably likely to result in material liability under Environmental
Laws, (c) generate any Hazardous Materials on any of the Real Estate except in
material compliance with Environmental Laws, or (d) conduct any activity at any
Real Estate or use any Real Estate in any manner so as to cause a Release which
is reasonably likely to result in material liability under Environmental Laws.
Section 8.6. Distributions. Borrower shall not permit the total
Distributions by it and the Company during any fiscal year to exceed 90% of
Funds from Operations for such year and shall not permit there to be more than
two consecutive fiscal quarters during which the total Distributions by Borrower
and the Company during each fiscal quarter exceed 100% of Funds from Operations
for such fiscal quarter except that such limitations on Distributions may be
exceeded to the extent necessary for the Company to maintain its REIT status
provided that the Company provides the Agent with a letter from its accountants
or attorneys setting forth the basis for computation of the amount of such
necessary excess Distributions. During any period when any Default or Event of
Default has occurred and is continuing the total Distributions by the Borrower
and the Company will not exceed the minimum amount necessary for the Company to
maintain its REIT status. The Guarantors (other than the Company) will not make
any Distributions except Distributions to the Borrower.
76
Section 8.7. Equity Repurchase Payments. The Borrower and the Company
shall not make any Equity Repurchase Payments during any period when any Default
or Event of Default has occurred and is continuing or would occur after giving
effect thereto.
Section 8.8. Preferred Distributions. During any period when any Event of
Default has occurred and is continuing the Borrower and the Company shall not
make any Preferred Distributions.
Section 8.9. Liens. The Borrower and the Company will not, and will not
permit any Related Company to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, except:
(a) Permitted Liens;
(b) Liens securing Secured Indebtedness, the incurrence of which is
not prohibited by Article IX; and
(c) other Liens on a Property which is not an Unencumbered Property,
so long as such Liens would not have a Material Adverse Effect or
constitute or result in a Default or an Event of Default under this
Agreement.
Notwithstanding the foregoing provisions of this Section 8.9, the failure of
any Unencumbered Property to comply with the covenants set forth in this
Section 8.9 shalL result in such Unencumbered Property's no longer qualifying
as Unencumbered Property under this Agreement, but such disqualification shall
not by itself constitute a Default or Event of Default, unless such
non-qualification otherwise constitutes or results in a Default or Event of
Default.
Section 8.10. Negative Pledge. From and after the date hereof, none of
the Borrower, the Company, nor any other Guarantor shall enter into or permit to
exist, and none of the Borrower, the Company, nor any other Guarantor will
permit any Related Company to enter into or permit to exist, any agreement or
arrangement (i) containing any provision prohibiting or restricting the creation
or assumption of any Lien upon its properties (other than mechanics liens or
judgment liens more than 30 days past due and other than with respect to
prohibitions on liens set forth in a mortgage or any related loan agreement or
joint venture agreement on a particular property which is not an Unencumbered
Property), revenues or assets, whether now owned or hereafter acquired, or (ii)
prohibiting or restricting the ability of a such party to amend or modify this
Agreement or any other Loan Document, or (iii) prohibiting or restricting the
ability of any Related Company to make or pay dividends or distributions to the
Company, the Borrower or any other Guarantor.
Section 8.11. Transactions with Affiliates. The Borrower, the Company and
the other Guarantors will not, and will not permit any Related Company to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to such party
or such Related Company than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions between or among the Related
Companies, (c) payment of compensation,
77
perquisites and fringe benefits arising out of any employment or consulting
relationship, and (d) any such Transactions between or among the Borrower and/or
any Guarantor.
Section 8.12. Change in Nature of BusineSection The Borrower, the
Company and the other Guarantors will not engage in any material line of
business substantially different from the line of business conducted by the
Related Companies on the date hereof or any Related Business.
Section 8.13. Dispositions. The Borrower, the Company and the other
Guarantors will not, and will not permit and Related Company to, sell transfer
and otherwise dispose of any asset unless the Borrower complies with Section
7.13 to the extent applicable, and after giving effect thereto no Default or
Event of Default exists.
Section 9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower covenants
and agrees as follows, so long as any Loan or Note is outstanding or any Lender
has any obligation to make any Loan or any Letter of Credit is outstanding:
Section 9.1. Unsecured Debt to Value of All Unencumbered Properties. The
Borrower will not at any time permit the ratio of Unsecured Indebtedness to the
Value of All Unencumbered Properties to exceed 60%; provided that such ratio may
exceed 60% on up to two (2) occasions during the term of this Agreement in order
to permit the Borrower to consummate a permitted acquisition of a portfolio of
properties so long as (a) such ratio does not exceed 65%, (b) such ratio ceases
to exceed 60% within 180 days following each date such ratio first exceeded 60%
and (c) the Borrower provides a certificate to the Agent when such ratio first
exceeds 60% and when such ratio ceases to exceed 60%.
Section 9.2. Total Debt to Total Asset Value. The Borrower will not at
any time permit the ratio of Total Debt to Total Asset Value to exceed 60%;
provided that such ratio may exceed 60% on up to two (2) occasions during the
term of this Agreement in order to permit the Borrower to consummate a permitted
acquisition of a portfolio of properties so long as (a) such ratio does not
exceed 65%, (b) such ratio ceases to exceed 60% within 180 days following each
date such ratio first exceeded 60% and (c) the Borrower provides a certificate
to the Agent when such ratio first exceeds 60% and when such ratio ceases to
exceed 60%.
Section 9.3. Maximum Secured Debt. The Borrower will not at anytime
permit the ratio of Secured Indebtedness to Total Asset Value to exceed forty
percent (40%).
Section 9.4. Minimum Tangible Net Worth. The Borrower will not as of any
Borrowing Date or as of the end of any fiscal quarter of the Borrower (each such
date is referred to herein as a "SPECIFIED DATE") permit the Tangible Net Worth
of the Borrower to be less than $1,650,000,000 plus 75% of Net Offering
Proceeds.
Section 9.5. Unencumbered Interest Coverage Ratio. The Borrower will not
as of any Specified Date permit the ratio of its Adjusted Net Operating Income
from all Unencumbered Properties to Interest Expense on Unsecured Indebtedness
to be less than 2.00 to 1.0 for any fiscal quarter.
78
Section 9.6. Adjusted EBITDA to Fixed Charges. The Borrower will not as
of any Specified Date permit the ratio of its Adjusted EBITDA to Fixed Charges
to be less than 1.50 to 1.0 for any fiscal quarter.
Section 9.7. Pro Forma Calculations. The Borrower shall comply with the
financial ratios set forth in Section 9.1 through Section 9.6 as of each
Borrowing Date. The BorroWer shall recalculate such financial ratios referred to
in Section 9.1 through Section 9.3 by adding the amount equal to the
Indebtedness associated with the Loans to be madE on such Borrowing Date to the
Indebtedness reflected on the most recently available financial statements, and
adding thereto any Indebtedness incurred since the date of such financial
statement (less any Indebtedness repaid, retired, or forgiven during such
period) and adding thereto the value of such assets (determined at cost)
acquired with such Indebtedness to Total Asset Value and Value of All
Unencumbered Properties, if applicable (less the value of any assets sold during
such period). The Borrower shall deliver its certificate, signed on its behalf
by a Responsible Officer of the Borrower, certifying that the pro forma
calculations as of such Borrowing Date demonstrate the Borrower's compliance
with the covenants and financial ratios set forth in Section 9.1 through
Section 9.6.
Section 9.8. Covenant Calculations.
(a) For purposes of the calculations to be made pursuant to Section
8.2(g) and Section 9.1 to Section 9.6 (and the definitions used
therein), the relevant financIal statements and terms will (1) be adjusted
to include minority interests relating to the Borrower's operating
partnership units and (2) exclude the minority interests effect relating
to consolidation of investments in non-wholly owned subsidiaries under
Interpretation No. 46 of the Financial Accounting Standards Board.
(b) For purposes of calculating the financial covenants in Section
8.2(g), Section 8.6 and Section 9.1 through Section 9.6 (including the
definitions used therein), (a) AdjUsted EBITDA, Adjusted Net Operating
Income, EBITDA, Fixed Charges, Interest Expenses, Net Operating Income,
Total Asset Value, Unencumbered Development Property Value, Unencumbered
Net Income, Unencumbered Property Value and Value of All Unencumbered
Properties shall be calculated, and without duplication, to include the
pro-rata share (as determined by their respective percentage interests in
the profits and losses of such Unconsolidated Entity) of results or value
attributable to the Borrower and its Subsidiaries from Unconsolidated
Entities and (b) Total Debt shall be calculated as follows: (i) if the
Indebtedness of a Unconsolidated Entity is recourse to the Borrower or one
of its Subsidiaries, then Total Debt shall include the amount of such
Indebtedness that is recourse to such Person, without duplication, and
(ii) if the Indebtedness of such Unconsolidated Entity is not recourse to
the Borrower or one of its Subsidiaries, then Total Debt shall include
such Person's pro-rata share of such Indebtedness as determined by its
percentage interest in the profits and losses of such Unconsolidated
Entity.
Section 10. CONDITIONS TO EFFECTIVENESection This Agreement shall become
effective when each of the following conditions precedent have been satisfied:
Section 10.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in
79
full force and effect and shall be in form and substance satisfactory to each of
the Lenders. Each Lender shall have received a fully executed copy of each such
document prior to or on the Effective Date.
Section 10.2. Certified Copies of Organization Documents; Good Standing
Certificates. The Agent shall have received (i) a Certificate of the Company to
which there shall be attached complete copies of the Borrower's Limited
Partnership Agreement and its Certificate of Limited Partnership, certified as
of a recent date by the Secretary of State of Pennsylvania, (ii) Certificates of
Good Standing for the Borrower from the State of Pennsylvania and each State in
which an Unencumbered Property or an Unencumbered Development Property is
located, (iii) a copy of the Company's Declaration of Trust certified by the
Maryland Secretary of State, (iv) Certificates of Good Standing for the Company
from the State of Maryland and the Commonwealth of Pennsylvania, and (v)
certificates of good standing and certificates from the Borrower with respect to
the provisions of applicable organizational documents of the Guarantors.
Section 10.3. By-laws; Resolutions. All action on the part of the
Borrower and each Guarantor necessary for the valid execution, delivery and
performance by the Borrower and each Guarantor of this Agreement and the other
Loan Documents to which it is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to the Agent shall have
been provided to the Agent. The Agent shall have received from the Company true
copies of its by-laws and the resolutions adopted by its Board of Directors
authorizing the transactions described herein, each certified by its secretary
to be true and complete and in effect on the Effective Date.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent shall
have received from the Company an incumbency certificate, dated as of the
Effective Date, signed by a duly authorized officer of the Company and giving
the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of the Company (in its own
capacity and as general partner on behalf of Borrower and on behalf of each
Guarantor which is a partnership), each of the Loan Documents to which the
Borrower, any Guarantor or the Company is or is to become a party; (b) to make
Loan Requests and Conversion Requests; and (c) to give notices and to take other
action on behalf of the Borrower under the Loan Documents.
Section 10.5. Opinions of Counsel Concerning Organization and Loan
Documents. Each of the Lenders and the Agent shall have received favorable
opinions from Borrower's and Guarantors' counsel addressed to the Lenders and
the Agent and dated as of the Effective Date, in form and substance satisfactory
to the Agent.
Section 10.6. Payment of Fees. The Borrower shall have paid to the Agent
the fees pursuant to Section 4.1 and shall have paid all other expenses as
provided in Section 15 hereof then outstanding.
Section 10.7. Closing Certificate. The Borrower shall have delivered to
the Agent a certificate of the Borrower, signed on its behalf by a Responsible
Officer, certifying that the conditions specified in Section Section
10.1-10.6, Section 10.8 and Section 11.1 have been satisfied and that there
has been no event or circumstance iN the business, operations, financial or
other condition or prospects of the Borrower, the Company or any Related Company
since the Balance Sheet Date, that has had or
80
could be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect.
Section 10.8. Compliance Certificate. The Borrower shall have provided to
the Agent and each of the Lenders a certificate of the Company, signed on its
behalf by a Responsible Officer, certifying as to pro forma compliance with the
financial covenants in Section 8.2(g) and Section 9 as of the Effective Date,
taking into account anY Loans to be made or Letters of Credit to be issued on
such date.
Section 11. CONDITIONS TO ALL CREDIT ADVANCES. The obligations of the
Lenders to make any Loan or to issue, amend, renew or extend any Letter of
Credit, whether on or after the Effective Date, shall also be subject to the
satisfaction of the following conditions precedent:
Section 11.1. Representations True; No Event of Default; Compliance
Certificate. Each of the representations and warranties of the Borrower and the
Company contained in this Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Agreement shall
be true as of the date as of which they were made and shall also be true in all
material respects at and as of the time of the making of such Loan or the
issuance of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and except to the extent that such
representations and warranties relate expressly to an earlier date); the
Borrower shall have performed and complied with all terms and conditions herein
required to be performed by it or prior to the Borrowing Date of such Loan or
the issuance date of such Letter of Credit; and no Default or Event of Default
shall have occurred and be continuing on the date of any Loan Request or on the
Borrowing Date of such Loan or on the date of any Letter of Credit Request or on
the issuance date of such Letter of Credit or would occur as a result of the
making of such Loan or the issuance of such Letter of Credit. Each of the
Lenders shall have received a Compliance Certificate of the Borrower, signed on
its behalf by a Responsible Officer, to such effect, which certificate will
include, without limitation, computations evidencing compliance with the
covenants contained in Section 9.1 through Section 9.6 hereof after giving
effect to such requested Loan or Letter of Credit.
Section 11.2. No Legal Impediment. No change shall have occurred after the
date of this Agreement in any law or regulations thereunder or interpretations
thereof that in the reasonable opinion of any Lender would make it illegal for
such Lender to make such Loan or to hold an interest in such Letter of Credit.
Section 11.3. Governmental Regulation. Each Lender shall have received
such statements in substance and form reasonably satisfactory to such Lender as
such Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
Section 11.4. Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement, the other Loan Documents
and all other documents incident thereto shall be reasonably satisfactory in
substance and in form to the Agent, and the Lenders
81
shall have received all information and such counterpart originals or certified
or other copies of such documents as the Agent may reasonably request.
Each Loan Request or Letter of Credit Request (other than a Loan Request
requesting only a conversion of any Loan (other than a Competitive Bid Loan) to
the other Type or a continuation of Eurocurrency Rate Loan (other than a
Competitive Bid Loan)) submitted by the Borrower, and each amendment, renewal,
or extension of any Letter of Credit shall be deemed to be a representation and
warranty that the conditions specified in Section 11.1 have been satisfied on
and as of the applicable Borrowing Date or date on which a Letter of Credit is
issued.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. Events of Default and Acceleration. If any of the following
events ("EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "DEFAULTS") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loans when
the same shall become due and payable, and such failure shall continue
unremedied for five (5) days;
(b) the Borrower shall fail to pay any interest on the Loans or any
other sums due hereunder or under any of the other Loan Documents when the
same shall become due and payable, and such failure shall continue
unremedied for five (5) days;
(c) the Borrower or the Company shall fail to comply with any of its
covenants contained in Section 7.5, the first sentence of Section 7.6,
Section 7.11, Section 7.13, Section 8 or Section 9 hereof;
(d) the Borrower, any Guarantor or the Company shall fail to perform
any other term, covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified elsewhere in this Section
12) for thirty (30) days after written notice of such failure from Agent
to the Borrower;
(e) any representation or warranty of the Borrower in this Agreement
or any of the other Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Agreement, shall prove to
have been false in any material respect upon the date when made or deemed
to have been made or repeated; provided, however, that with respect to the
representations and warranties of the Borrower contained in Section 6.2,
Section 6.3, Section 6.13, Section 6.18 and Section 6.21, if the condition
or event making the representation and warranty false is capable of being
cured by the Borrower, no enforcemenT action has been commenced against
the Borrower or the applicable Unencumbered Property or Unencumbered
Development Property on account of such condition or event, the applicable
Unencumbered Property or Unencumbered Development Property is not subject
to risk of forfeiture due to such condition or event, and the Borrower
promptly commences the cure thereof after the Borrower's first obtaining
knowledge of such condition or event, the Borrower shall have a period of
thirty (30) days after the date that the Borrower first obtained knowledge
of such condition or event during which the Borrower may cure such
condition or event (or, if
82
such condition or event is not reasonably capable of being cured within
such thirty (30) day period, such additional period of time as may be
reasonably required in order to cure such condition or event but in any
event such period shall not exceed six (6) months from the date that the
Borrower first obtained knowledge of such condition or event), and no
Event of Default shall exist hereunder during such thirty (30) day or
additional period so long as the Borrower continuously and diligently
pursues the cure of such condition or event and the other conditions to
such cure period have not changed. Notwithstanding the foregoing, the
failure of any Unencumbered Property to comply with such representations
shall result in such Unencumbered Property's no longer qualifying as
Unencumbered Property under this Agreement while such non-compliance is in
effect, but such disqualification shall not by itself constitute a Default
or Event of Default;
(f) the Borrower, the Company or any of the Related Companies shall
fail to pay at maturity, or within any applicable period of grace, any
Recourse Indebtedness, or shall fail to observe or perform any material
term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing Indebtedness for such period of time as
would permit (assuming the giving of appropriate notice if required and
the passage of any applicable grace or cure periods) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity
thereof, unless in any event the aggregate amount of all such defaulted
Recourse Indebtedness plus the amount of any unsatisfied judgments
described in paragraph (i) of this Section 12.1 is less than
$30,000,000.00;
(g) any of the Borrower, the Company or any other Guarantor shall
make an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of any substantial part of its
properties or shall commence any case or other proceeding under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against any such Person and such Person shall indicate its
approval thereof, consent thereto or acquiescence therein or any of the
events described in this paragraph shall occur with respect to any other
Related Company or any Unconsolidated Entity and such event shall have a
Material Adverse Effect;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower, the Company, or any other Guarantor, or
its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower,
the Company, or any other Guarantor or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered, or any of the events described in this
83
paragraph shall occur with respect to any other Related Company or any
Unconsolidated Entity and such event shall have a Material Adverse Effect;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any
uninsured final judgment against the Borrower that, with other outstanding
uninsured final judgments, undischarged, against the Borrower, the Company
or any of the Related Companies plus the amount of any defaulted Recourse
Indebtedness under paragraph (f) of this Section 12. 1, exceeds in the
aggregate $30,000,000;
(j) if any of the Loan Documents or any material provision of any
Loan Documents shall be unenforceable, cancelled, terminated, revoked or
rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Agent, or any
action at law, suit or in equity or other legal proceeding to make
unenforceable, cancel, revoke or rescind any of the Loan Documents shall
be commenced by or on behalf of the Borrower, any Guarantor or the
Company, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue
a judgment, order, decree or ruling to the effect that, any one or more of
the Loan Documents is illegal, invalid or unenforceable in accordance with
the terms thereof;
(k) the Borrower, any Guarantor or the Company shall be indicted for
a federal crime, a punishment for which could include the forfeiture of
any assets of the Borrower;
(l) the Borrower shall fail to pay, observe or perform any term,
covenant, condition or agreement contained in any agreement, document or
instrument evidencing, securing or otherwise relating to any Indebtedness
of the Borrower to any Lender (other than the Obligations) and/or relating
to any Permitted Lien (other than the Obligations) within any applicable
period of grace provided for in such agreement, document or instrument;
(m) an ERISA Reportable Event shall have occurred that, in the
opinion of the Requisite Lenders, when taken together with all other ERISA
Reportable Events that have occurred, could reasonably be expected to
result in liability of the Related Companies in an aggregate amount
exceeding $5,000,000;
(n) the Company shall at any time fail to retain direct or indirect
management and Control of the Borrower;
(o) a Change of Control shall occur;
(p) any "Event of Default", as defined in any of the other Loan
Documents shall occur;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Requisite Lenders shall, by notice in writing
to the Borrower declare all amounts
84
owing with respect to this Agreement, the Notes and the other Loan Documents to
be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower and the Guarantors; provided that in
the event of any Event of Default specified in Section Section 12.1(g) or
12.1(h), all such amounts shall become immediatelY due and payable automatically
and without any requirement of notice from the Agent or action by the Requisite
Lenders.
Section 12.2. Termination of Commitments. If any one or more Events of
Default specified in Section 12.1(g) or Section 12.1(h) shall occur, any unused
portion of The Commitments, and of the Swingline Commitment, shall forthwith
automatically terminate and the Lenders shall be relieved of all obligations to
make Loans to the Borrower or to issue Letters of Credit for the benefit of the
Borrower. If any other Event of Default shall have occurred and be continuing,
the Agent may with the consent of the Requisite Lenders and shall at the request
of the Requisite Lenders by notice to the Borrower terminate the unused portion
of its Commitment hereunder, and of the Swingline Commitment, and upon such
notice being given such unused portion of its Commitment or of the Swingline
Commitment, shall terminate immediately and the Lenders shall be relieved of all
further obligations to make Loans other than Mandatory Prime Rate Loans. No
termination of the Commitments hereunder shall relieve the Borrower of any of
the Obligations or any of its existing obligations to the Lenders arising under
other agreements or instruments.
Section 12.3. Remedies. In case any one or more of the Events of Default
shall have occurred, and whether or not the Requisite Lenders shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent may
with the consent of the Requisite Lenders and shall at the request of the
Requisite Lenders proceed to protect and enforce the rights and remedies of the
Agent and the Lenders under this Agreement, the Notes or any of the other Loan
Documents by suit in equity, action at law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in
this Agreement and the other Loan Documents or any instrument pursuant to which
the Obligations are evidenced and, if any amount shall have become due, by
declaration or otherwise, to proceed to enforce the payment thereof or any other
legal or equitable right of the Agent and the Lenders. No remedy herein
conferred upon any Lender or the Agent or the holder of any Note is intended to
be exclusive of any other remedy and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of
law.
Section 12.4. Distribution of Enforcement Proceeds. In the event that,
following the occurrence or during the continuance of any Default or Event of
Default, the Agent or any Lender as the case may be, receives any monies in
connection with the enforcement of any of the Loan Documents, such monies shall
be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all
or any of the rights, remedies, powers and privileges of the Agent or the
Lenders under
85
this Agreement or any of the other Loan Documents or in support of any
provision of adequate indemnity to the Agent against any taxes or liens
which by law shall have, or may have, priority over the rights of the
Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Requisite Lenders may determine; provided, however, that distribution
in respect of such Obligations shall be made among the Lenders pro rata in
accordance with each Lender's respective Credit Exposure; and provided,
further, that the Agent may in its discretion make proper allowance to
take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Requisite Lenders and the Agent of
all of the Obligations, and the deposit in any cash collateral account
established pursuant to Section 2.9(f) of the amount required thereby, to
the payment of any obligations required to be paid pursuant to laws
applicable to the enforcement proceedings; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are legally entitled thereto.
Section 13. SETOFF. Borrower hereby grants to each Lender, a continuing
lien, security interest and right of setoff as security for all liabilities and
obligations to such Lender hereunder, whether now existing or hereafter arising,
upon and against all deposits, credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control of such Lender or
in transit to it. At any time, without demand or notice (any such notice being
expressly waived by Borrower), any Lender may setoff the same or any part
thereof and apply the same to any liability or obligation of Borrower hereunder
even though unmatured and regardless of the adequacy of any other collateral
securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE
ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY COLLATERAL WHICH SECURES THE
OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY THE BORROWER. Each of the
Lenders agrees with each other Lender that if such Lender shall receive from the
Borrower, whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim evidenced by the Notes held
by such Lender by proceedings against the Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Lender any amount in excess of its ratable
portion of the payments received by all of the Lenders with respect to the Notes
held by all of the Lenders, such Lender will make such disposition-and
arrangements with the other Lenders with respect to such excess, either by way
of distribution, pro tanto assignment of claims, subrogation or otherwise as
shall result in each Lender receiving in respect of the Notes held by it its
proportionate payment as contemplated by this Agreement; provided that if all or
any part of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest, unless the Lender from whom such
payment is recovered is required to pay
86
interest thereon, in which case each Lender returning funds to such Lender shall
pay its allocable share of such interest based on the period of time that it was
in possession of the funds being returned.
Section 14. THE AGENT.
Section 14.1. Authorization. The Agent is authorized to take such action
on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably incident
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by the Agent. The
relationship between the Agent and the Lenders is and shall be that of agent and
principal only, and nothing contained in this Agreement or any of the other Loan
Documents shall be construed to constitute the Agent as a trustee for any
Lender.
Section 14.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
Section 14.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
Section 14.4. No Representations. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes. The Agent shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to it by the Borrower or any holder
of any of the Notes shall have been duly authorized or is true, accurate and
complete. The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Lenders,
with respect to the credit worthiness or financial condition of the Borrower.
Each Lender acknowledges that it has, independently and without reliance upon
the Agent or any other Lender, and based upon such information and documents as
it has deemed appropriate, made its
87
own credit analysis and decision to enter into this Agreement. Each Lender has
been independently represented by separate counsel on all matters regarding this
Agreement.
Section 14.5. Payment.
(a) A payment by the Borrower, any Guarantor or the Company to the
Agent hereunder or any of the other Loan Documents for the account of any
Lender shall constitute a payment to such Lender subject to the pro rata
rights to repayment based upon the Commitment of each Lender, as
applicable, provided that payments made with respect to Competitive Bid
Loans shall be allocated and distributed to the applicable Lenders holding
such Competitive Bid Loans. The Agent agrees promptly to distribute to
each Lender such Lender's pro rata share of payments received by the Agent
for the account of the Lenders except as otherwise expressly provided
herein or in any of the other Loan Documents. Notwithstanding the
foregoing, the amounts advanced by the Additional Commitment Lenders on
the Commitment Increase Date and certain Eurocurrency Prepayment Fees and
Letter of Credit fees shall be distributed on a non pro rata basis as
provided in Section 2.2(b) and the Facility Fees for the quarter which
included the Commitment Increase Date shall be paid as provided in Section
4.2(a).
(b) If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any of
the other Loan Documents might involve it in liability, it may refrain
from making distribution until its right to make distribution shall have
been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay
over the same in such manner and to such Persons as shall be determined by
such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Lender that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to
comply with the provisions of Section 13 with respect to making
dispositions and arrangements with the other Lenders, where such Lender's
share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of
the Lenders, in each case as, when and to the full extent required by the
provisions of this Agreement, or to adjust promptly such Lender's
outstanding principal and its pro rata Commitment Percentage as provided
in Section 2.1 hereof, shall be deemed delinquent (a "DELINQUENT LENDER")
and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied. A Delinquent Lender shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, interest, fees or otherwise, to the
remaining non-delinquent Lenders for application to, and reduction of,
their respective pro rata shares of all outstanding Loans. The Delinquent
Lender hereby authorizes the Agent to distribute such payments to the
non-delinquent Lenders in proportion to their respective pro rata shares
of all outstanding Loans. A Delinquent Lender shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of
the assigned
88
payments to all outstanding Loans of the non-delinquent Lenders, the
Lenders' respective pro rata shares of all outstanding Loans have returned
to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
(d) If any amount which the Agent is required to distribute to the
Lenders pursuant to this Section 14.5 is actually distributed to any
Lender on a date which is later than the first Business Day following the
Agent's receipt of the corresponding payment from the Borrower, the Agent
shall pay to such Lender on demand an amount equal to the product of (i)
the average computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, times (ii)
the amount of such late distribution to such Lender, times (iii) a
fraction, the numerator of which is the number of days or portion thereof
that elapsed from and including the second Business Day after the Agent's
receipt of such corresponding payment from the Borrower to the date on
which the amount so required to be distributed to such Lender actually is
distributed, and the denominator of which is 365.
Section 14.6. Holders of Notes. The Agent may deem and treat the payee of
any Note as the absolute owner or purchaser thereof for all purposes hereof
until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder assignee or transferee.
Section 14.7. Indemnity. The Lenders ratably agree hereby to indemnify and
hold harmless the Agent (to the extent not reimbursed by the Borrower, the
Company or any other Related Company and without limiting the obligation of the
Borrower, the Company or any Related Company to do so) from and against any and
all claims, actions and units (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Agent has not
been reimbursed by the Borrower as required by Section 15), and liabilities of
every nature and character arising out of or related to this Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated or
evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
Section 14.8. Agent as Lender. In its individual capacity, Bank of America
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Notes as it would have were it not also the Agent.
Section 14.9. Resignation and Removal. The Agent may (i) resign at any
time by giving sixty (60) days' prior written notice thereof to the Lenders and
the Borrower, or (ii) be removed for willful misconduct or gross negligence by
written notice from the Requisite Lenders and with the consent of the Borrower.
Upon any such resignation or removal, the Requisite Lenders shall have the right
to appoint a successor Agent. Unless a Default or Event of Default shall have
occurred and be continuing, appointment of such successor Agent shall be subject
to the reasonable approval of the Borrower. If no successor Agent shall have
been so appointed by the Requisite Lenders and shall have accepted such
appointment within thirty (30) days after (x) the giving of notice of
resignation by the retiring Agent, (y) the giving of a notice of removal by the
Requisite
89
Lenders with the consent of the Borrower, or if the Borrower has disapproved or
failed to approve a successor agent within such period, then the retiring or
removed Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a financial institution which satisfies the definition of Eligible
Assignee. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent, and the retiring or removed Agent shall be discharged from its
duties and obligations as Agent hereunder. Such successor Agent shall issue
replacement Letters of Credit and any outstanding Letters of Credit issued by
the retiring or removed Agent shall be canceled and returned to it. Such
successor Agent shall also replace the retiring or removed Agent in its capacity
as Swingline Lender. After any retiring Agent's resignation or any removal of
the Agent, the provisions of this Agreement and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
Section 14.10. Notification of Defaults and Events of Default and other
Notices. Each Lender hereby agrees that, upon learning of the existence of a
Default or an Event of Default, it shall promptly notify the Agent thereof. The
Agent hereby agrees that upon receipt of any notice under this Section 14.10 it
shall promptly notify the other Lenders of the existence of such Default or
Event of Default. The Agent shall also promptly provide each Lender with a copy
of any notices which the Agent receives from the Borrower pursuant to Section
7.5 or Section 7.13.
Section 14.11. Duties in the Case of Enforcement. In case one of more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent may, with the
consent of the Requisite Lenders (which consents may be obtained orally in
emergency situations), and the Agent shall, if (a) so requested by the Requisite
Lenders and (b) the Lenders have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the Loan Documents and
exercise all or any such other legal and equitable and other rights or remedies
as it may have. The Requisite Lenders may direct the Agent in writing as to the
method and the extent of any such enforcement actions, the Lenders hereby
agreeing to indemnify and hold the Agent harmless from all liabilities incurred
in respect of all actions taken or omitted in accordance with such directions,
provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
Section 15. EXPENSES. The Borrower agrees to pay (a) the reasonable costs
of producing and reproducing this Agreement, the other Loan Documents and the
other agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent, the L/C Issuer
or any of the Lenders (other than taxes based upon the Agent's, the L/C Issuer's
or any Lender's net income), including any recording, mortgage, documentary or
intangibles taxes in connection with the Loan Documents, or other taxes payable
on or with respect to the transactions contemplated by this Agreement, including
any taxes payable by the Agent, the L/C Issuer or any of the Lenders after the
Effective Date (the Borrower hereby agreeing to indemnify the Agent, the L/C
Issuer and the Lenders with respect thereto), (c) all title examination costs,
appraisal fees, engineers', inspectors' and surveyors' fees, recording
90
costs and the reasonable fees, expenses and disbursements of the Agent's counsel
or any local counsel to the Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, and amendments, modifications,
approvals, consents or waivers hereto or hereunder, (d) the fees, costs,
expenses and disbursements of the Agent and the L/C Issuer incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein including without limitation,
the costs incurred by the Agent in connection with its inspection of the
Unencumbered Properties and the Unencumbered Development Properties, and the
fees and disbursements of the Agent's or , the L/C Issuer's counsel and the
Borrower's legal counsel in preparing documentation, (e) the fees, costs,
expenses and disbursements of the Agent and the Arranger incurred in connection
with the syndication and/or participation of the Loans, (f) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Lender, the L/C Issuer or the Agent and the
fees and costs of appraisers, engineers, investment bankers, surveyors or other
experts retained by the Agent, the L/C Issuer or any Lender in connection with
any such enforcement proceedings) incurred by any Lender or the Agent in
connection with (i) the enforcement of or preservation of rights under any of
the Loan Documents against the Borrower or the administration thereof after the
occurrence of a Default or Event of Default (including, without limitation,
expenses incurred in any restructuring and/or "workout" of the Loans), and (ii)
any litigation, proceeding or dispute whether arising hereunder or otherwise, in
any way related to the Agent's, the L/C Issuer's or the Lender's relationship
with the Borrower, the Company, any Unconsolidated Entity or any of the Related
Companies, (g) all reasonable fees, expenses and disbursements of the Agent
incurred in connection with UCC searches, and (h) all costs incurred by the
Agent in the future in connection with its inspection of the Unencumbered
Properties and the Unencumbered Development Properties. The covenants of this
Section 15 shall survive payment or satisfaction of payment of amounts owing
with respect to the Notes.
Section 16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Agent, the L/C Issuer, the Arranger and the Lenders and the
shareholders, directors, agents, officers, employees, subsidiaries, and
affiliates of the Agent, the L/C Issuer, the Arranger and the Lenders from and
against any and all claims, actions or causes of action and suits whether
groundless or otherwise, and from and against any and all Liabilities, losses,
settlement payments, obligations, damages and expenses of every nature and
character arising out of this Agreement or any of the other Loan Documents or
the transactions contemplated hereby or which otherwise arise in connection with
the financing including, without limitation except to the extent directly caused
by the gross negligence or willful misconduct of a Lender or the Agent (but such
limitation on indemnification shall only apply to the Agent, the L/C Issuer, the
Arranger or Lender being grossly negligent or committing willful misconduct),
(a) any actual or proposed use by the Borrower or any Guarantor of the proceeds
of any of the Loans, (b) any actual or alleged infringement of any patent,
copyright, trademark, service mark or similar right of the Borrower, (c) the
Borrower entering into or performing this Agreement or any of the other Loan
Documents or (d) with respect to the Borrower and its respective properties, the
violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to claims with respect to wrongful death, personal injury or damage to
property), (e) any cost, claim liability, damage or expense in connection with
any
91
harm the Borrower may be found to have caused in the role of a broker, in each
case including, without limitation, the reasonable fees and disbursements of
counsel and allocated costs of internal counsel incurred in connection with any
such investigation, litigation, settlement or other proceeding. In litigation,
or the preparation therefor, the Lenders and the Agent shall each be entitled to
select their own separate counsel and, in addition to the foregoing indemnity,
the Borrower agrees to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the Borrower under this
Section 16 are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The provisions of this Section 16
shall survive the repayment of the Loans and the termination of the obligations
of the Lenders hereunder and shall continue in full force and effect as to the
Lenders so long as the possibility of any such claim, action, cause of action or
suit exists.
Section 17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower, any Guarantor or the Company pursuant hereto shall be deemed to
have been relied upon by the Lenders, the L/C Issuer and the Agent,
notwithstanding any investigation heretofore or hereafter made by it, and shall
survive the making by the Lenders of the Loans, as herein contemplated, and
shall continue in full force and effect so long as any amount due under this
Agreement or the Notes or any of the other Loan Documents remains outstanding or
the Lenders have any obligation to make any Loans or the L/C Issuer has any
obligation to issue any Letters of Credit. The indemnification obligations of
the Borrower provided herein and the other Loan Documents shall survive the full
repayment of amounts due and the termination of the obligations of the Lenders
hereunder and thereunder to the extent provided herein and therein. All
statements contained in any certificate or other paper delivered to the Agent,
the L/C Issuer or any Lender at any time by or on behalf of the Borrower
pursuant hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower hereunder.
Section 18. ASSIGNMENT; PARTICIPATIONS; ETC.
Section 18.1. Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent, the L/C Issuer, and the Borrower, shall have given
its prior written consent to such assignment, which consent shall not be
unreasonably withheld or delayed, except that such consent of the Borrower shall
not be needed if a Default or an Event of Default has occurred and is continuing
or with respect to an assignment from a Lender to either one of its Affiliated
Lenders or to another Lender hereunder, (b) each such assignment shall be of a
portion of the assigning Lender's rights and obligations under this Agreement
relating to a specified Tranche A Commitment or Tranche B Commitment amount and
Commitment Percentage, (c) each assignment shall be in an amount of not less
than $2,000,000 that is a whole multiple of $1,000,000, (d) each Lender either
shall assign all of its Commitment and cease to be a Lender hereunder or shall
retain, free of any such assignment, an amount of its Commitment of not less
than $2,000,000, and (e) the parties to such assignment shall execute and
deliver to the Agent,
92
for recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit E hereto (an "ASSIGNMENT AND
ACCEPTANCE"), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder, and (ii) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Agent of the registration fee referred to in
Section 18.3, be released from its obligations under this Agreement.
Section 18.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance by
the Borrower or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 6.4 and Section 7.4 and such other documents
and information as it haS deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d) such assignee will,
independently and without reliance upon the assigning Lender, the Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement, (e) such assignee represents and
warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as "Agent" on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender; and (h) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance.
Section 18.3. Register. The Agent shall maintain a copy of each Assignment
and Acceptance delivered to it and a register or similar list (the "REGISTER")
for the recordation of the names and addresses of the Lenders and the Commitment
Percentages of, and principal amount of the Loans owing to the Lenders from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this
93
Agreement. The Register shall be available for inspection by the Borrower and
the Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Lender agrees to pay to the
Agent a registration fee in the sum of $2,500.00, provided that such
registration fee shall not be required for assignments to an Eligible Assignee
which is an affiliate of the assigning Lender. The Agent may, without action by
any other party, amend Schedules 1 and 1.2 hereof to reflect the recording of
any such assignments.
Section 18.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the Lenders
(other than the assigning Lender). Within five (5) Business Days after receipt
of such notice, the Borrower, at its own expense, shall execute and deliver to
the Agent, in exchange for each surrendered Note, a new Note to the order of
such Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained some portion of its Loans hereunder, a new Note to the order of the
assigning Lender in an amount equal to the amount retained by it hereunder. Such
new Notes shall provide that they are replacements for the surrendered Notes and
that they do not constitute a novation, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes. The surrendered
Notes shall be cancelled and returned to the Borrower.
Section 18.5. Participations. Each Lender may sell participations to one
or more banks or other entities (but excluding any Related Companies) in a
portion of such Lender's rights and obligations under this Agreement and the
other Loan Documents; provided that (a) each such participation, other than
participations to its Affiliated Lenders or to another Lender hereunder, shall
be in an amount of not less than $2,000,000 that is a whole multiple of
$1,000,000, (b) any such sale or participation shall not affect the rights,
duties and obligations of the selling Lender hereunder to the Borrower, the
selling Lender shall continue to exercise all approvals, disapprovals and other
functions of a Lender and remain solely responsible to the other parties hereto
for the performance of its obligations, and the others parties hereto shall
continue to deal solely and directly with such Lender, (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve the vote of the Lender as to waivers, amendments or
modifications that would reduce the principal of or the interest rate on any
Loans, extend the term or increase the amount of the Commitment of such Lender
as it relates to such participant, reduce the amount of any fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest or release all or substantially all of any collateral held
hereunder, and (d) no participant which is not a Lender hereunder shall have the
right to grant further participations or assign its rights, obligations or
interests under such participation to other Persons without the prior written
consent of the Agent. Each entity with a participation shall be entitled to the
benefits of Section 4.5 and Section 13 and shall fulfill the obligations of
Section 4.13. The Agent shall promptly advise the Borrower in writing of any
such sale or participation.
94
Section 18.6. Pledge by Lender. Any Lender may at anytime pledge all or
any portion of its interest and rights under this Agreement (including all or
any portion of its Note) to secure obligations of such Lender, including to any
of the twelve Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or the enforcement thereof
shall release the pledgor Lender from its obligations hereunder or under any of
the other Loan Documents.
Section 18.7. No Assignment by Borrower. The Borrower and the Guarantors
shall not assign or transfer any of their respective rights or obligations under
any of the Loan Documents without the prior written consent of each of the
Lenders, and any such attempted assignment shall be null and void.
Section 18.8. Disclosure. The Borrower and each Guarantor agrees that in
addition to disclosures made in accordance with standard banking practices any
Lender may disclose information obtained by such Lender pursuant to this
Agreement to assignees or participants and potential assignees or participants
hereunder.
Section 18.9. Designated Banks. Any Lender (each, a "DESIGNATING LENDER")
may at any time designate one Designated Bank, which shall be an Affiliate of
the Designating Lender, to fund Competitive Bid Loans on behalf of such
Designating Lender subject to the terms of this Section 18.9 and the provisions
in Section 18.1 anD Section 18.5 shall not apply to such designation. No Lender
may designate more than one (1) Designated Bank. The parties to each such
designation shall execute and deliver to the Agent for its acceptance a
Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Bank, the Agent will accept such
Designation Agreement and will give prompt notice thereof to the Borrower,
whereupon, (i) the Borrower shall execute and deliver to the Designating Bank a
Designated Bank Note payable to the order of the Designated Bank, (ii) from and
after the effective date specified in the Designation Agreement, the Designated
Bank shall become a party to this Agreement with a right to make Competitive Bid
Loans on behalf of its Designating Lender pursuant to Section 2.10 after the
Borrower has accepted a Competitive Bid Loan (or portion thereof) of such
Designating Lender, and (iii) the Designated Bank shall not be required to make
payments with respect to any obligations in this Agreement except to the extent
of excess cash flow of such Designated Bank which is not otherwise required to
repay obligations of such Designated Bank which are then due and payable;
provided, however, that regardless of such designation and assumption by the
Designated Bank, the Designating Lender shall be and remain obligated to the
Borrower, the Agent and the other Lenders for each and every of the obligations
of the Designating Lender and its related Designated Bank with respect to this
Agreement, including, without limitation, any indemnification obligations
hereunder and any sums otherwise payable to the Borrower by the Designated Bank.
Each Designating Lender shall serve as the administrative agent of the
Designated Bank and shall on behalf of, and to the exclusion of, the Designated
Bank: (i) receive any and all payments made for the benefit of the Designated
Bank and (ii) give and receive all communications and notices and take all
actions hereunder, including, without limitation, votes, approvals, waivers,
consents and amendments under or relating to this Agreement and the other Loan
Documents. Any such notice, communication, vote, approval, waiver, consent or
amendment shall be signed by the Designating Lender as administrative agent for
the Designated
95
Bank and shall not be signed by the Designated Bank on its own behalf but shall
be binding on the Designated Bank to the same extent as if actually signed by
the Designated Bank. The Borrower, the Agent, and Lenders may rely thereon
without any requirement that the Designated Bank sign or acknowledge the same.
No Designated Bank may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Bank.
Section 19. NOTICES, ETC. (a) Notices Generally. Except in the case of
notices and other communications expressly permitted to be given by telephone
(and except as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows:
(i) if to the Borrower or any Guarantor, at 500
Chesterfield Parkway, Malvern, PA 19355, Attention: Chief
Financial Officer, facsimile: (610) 644-4129 or at such other
address for notice as the Borrower shall last have furnished
in writing to the Agent;
(ii) if to the Agent, the L/C Issuer or the Swingline
Lender, at Independence Center, 101 North Tryon Street,
Charlotte, North Carolina 28255-0001, Attention: Cindy Fisher,
facsimile: (704) 409-0180 or such other address for notice as
the Agent shall last have furnished in writing to the
Borrower, with a copy to the Agent at the Agent's Head Office;
or
(iii) if to any Lender, at such Lender's address set
forth on Schedule 1, hereto, or such other address for notice
as such Lender shall have last furnished in writing to the
Person giving the notice.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notices and other communications to
the Lenders and the L/C Issuer hereunder may be delivered or furnished by
electronic communication (including e-mail and internet or intranet
websites) pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender or the L/C Issuer
pursuant to Section 2 if such Lender or the L/C Issuer, as applicable, has
notified the Agent that it is incapable of receiving notices under such
section by electronic communication. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by
it, provided that approval of such procedures may be limited to particular
notices or communications.
96
Unless the Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such
as by the "return receipt requested" function, as available, return e-mail
or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and
identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM
THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING 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 ANY AGENT PARTY IN CONNECTION
WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent
or any of its Related Parties (collectively, the "AGENT PARTIES") have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person
for losses, claims, damages, liabilities or expenses of any kind (whether
in tort, contract or otherwise) arising out of any Borrower's or the
Agent's transmission of Borrower Materials through the internet, except to
the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and
non-appealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to any Borrower, any
Lender, the L/C Issuer or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or
actual damages).
(d) Change of Address, Etc. Each of the Borrower, the Agent, the L/C
Issuer and the Swingline Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice
to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower, the Agent, the L/C Issuer and the
Swingline Lender. In addition, each Lender agrees to notify the Agent from
time to time to ensure that the Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent and
(ii) accurate wire instructions for such Lender.
(e) Reliance by the Agent, L/C Issuer and Lenders. The Agent, the
L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices purportedly given by or on behalf of any Borrower even if (i) such
notices were not made in a manner specified
97
herein, were incomplete or were not preceded or followed by any other form
of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Agent, the L/C Issuer, each Lender and the Related Parties
of each of them from all losses, costs, expenses and liabilities resulting
from the reliance by such Person on each notice purportedly given by or on
behalf of the Borrower.
Section 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. This
agreement and each of the other Loan Documents, except as otherwise specifically
provided therein, and the rights and obligations of the parties hereunder shall
be construed and interpreted in accordance with the laws of the State of New
York (excluding the laws applicable to conflicts or choice of law to the extent
that would require application of substantive laws of another jurisdiction). THE
BORROWER, ON BEHALF OF ITSELF AND EACH GUARANTOR, AGREES THAT ANY SUIT BY IT FOR
THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT ONLY IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND BORROWER, ON BEHALF OF ITSELF AND EACH GUARANTOR, CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY AGENT OR ANY LENDER AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT
THE ADDRESS SPECIFIED IN Section 19. THE BORROWER, ON BEHALF OF ITSELF AND EACH
GUARANTOR, HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT-IS BROUGHT IN AN
INCONVENIENT FORUM.
Section 21. HEADINGS. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
Section 22. COUNTERPARTS. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile shall be
effective as delivery of a manually executed counterpart of this Agreement;
provided, that at the request of any party, each party shall confirm such
facsimile transmission by providing duplicate original counterparts.
Section 23. ENTIRE AGREEMENT. The Loan Documents, the Fee Letter and any
other documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 25.
Section 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. THE BORROWER,
THE AGENT AND EACH LENDER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN
98
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING,
WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE LOANS OR
ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NO PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, BORROWER (ON BEHALF OF
ITSELF AND EACH GUARANTOR) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. BORROWER
(ON BEHALF OF ITSELF AND EACH GUARANTOR) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDERS TO
PROVIDE THE COMMITMENTS AND MAKE THE LOANS.
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Agreement, may be given, and any term of this
Agreement or of any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower of any terms of this
Agreement or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively), but only with, the written consent of the
Requisite Lenders, other than amendments to schedules made in the ordinary
course as contemplated by this Agreement and, in the case of amendments, with
the written consent of the Borrower. Notwithstanding the foregoing, any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only with the
written consent of each of the Lenders affected thereby (and, in the case of all
such amendments, with the consent of the Borrower): (i) reduction of the
principal amount of or rate or amount of interest on the Loans or any fees or
other amounts payable to any Lender (other than by payment or prepayment
thereof) (ii) postponement or extension of any date fixed for any payment of
principal of, or interest on, the Loans or Letters of Credit or any fees or
other amounts payable to such Lender (other than the one-year extension of the
Maturity Date as permitted by Section 3.1), or (iii) increase in the amount of
the Total Commitment or the Commitments of the Lenders (other than changes in
Commitments pursuant to Assignments under Section 18 or pursuant to changes in
the Tranche A Commitment and the Total Commitment under Section 2.2); provided
that the written consent of all Lenders shall be required to (x) change any
provision herein or in any of the Loan Documents which expressly requires
consent of all the Lenders, (y) change the definition of Requisite Lenders or
(z) release (1) the Borrower from the Obligations, (2) any Guarantor from its
obligations under the Loan Documents (other than the release of a Guaranty of a
Guarantor (other than the Company) which no longer owns any Unencumbered
Properties or Unencumbered Development Properties) or (3) all or substantially
all of any collateral pledged to or held by the Agent hereunder (other than as
provided in Section 2.9(a)); and
99
provided further that no such amendment, waiver or consent shall amend, modify
or otherwise affect the rights and duties of the Agent or the L/C Issuer
hereunder without the prior written consent of the Agent or the L/C Issuer, as
the case may be. Each Lender shall respond to any request for a consent pursuant
to this Section 25 within ten (10) Business Days after the notice from the Agent
or the Borrower setting forth such request. No waiver shall extend to or affect
any obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in
writing and signed by the Designating Lender on behalf of its Designated Bank
affected thereby, (a) subject such Designated Bank to any additional
obligations, (b) reduce the principal of, interest on, or other amounts due with
respect to, the Designated Bank Note made payable to such Designated Bank, or
(c) postpone any date fixed for any payment of principal of, or interest on, or
other amounts due with respect to, the Designated Bank Note made payable to the
Designated Bank.
Section 26. SEVERABILITY. The provisions of this Agreement are severable,
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
Section 27. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that: (i)
neither the Agent nor any Lender has any fiduciary relationship with, or
fiduciary duty to, the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents; (ii) the relationship in
connection herewith between the Agent and the Lenders, on the one hand, and the
Borrower, on the other hand, is solely that of debtor and creditor and (iii) no
joint venture or partnership among any of the parties hereto is created hereby
or by the other Loan Documents, or otherwise exists by virtue of the Facility or
the Loans.
Section 28. NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the
Company, the Borrower or the Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
Section 29. INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "MAXIMUM RATE"). If the Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the
interest contracted for, charged, or received by the Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable Law,
(a) characterize any payment
100
that is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.
Section 30. USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act
(as hereinafter defined) and the Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrowers that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "ACT"), it is required to obtain, verify and record information that
identifies the Borrowers, which information includes the name and address of
each Borrower and Guarantor and other information that will allow such Lender or
the Agent, as applicable, to identify such Borrower in accordance with the Act.
The Borrower hereby agrees to comply with any requests for information by any
Lender or the Agent under this Section 30.
Section 31. JUDGMENT CURRENCY. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency (other than Dollars) into another currency, the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of the Borrower in respect of any such sum due from it to the Agent
or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "JUDGMENT CURRENCY") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "AGREEMENT CURRENCY"), be discharged only to
the extent that on the Business Day following receipt by the Agent of any sum
adjudged to be so due in the Judgment Currency, the Agent may in accordance with
normal banking procedures purchase the Agreement Currency with the Judgment
Currency. If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Agent from the Borrower in the Agreement Currency, the
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than
the sum originally due to the Agent in such currency, the Agent agrees to return
the amount of any excess to the Borrower (or to any other Person who may be
entitled thereto under applicable law).
Section 32. TRANSITIONAL ARRANGEMENTS.
(a) Existing Credit Agreements Superseded. This Agreement shall
supersede the each of the Existing Credit Agreements in its entirety,
except as provided in this Section 32. On the Effective Date, the rights
and obligations of the parties under each of the Existing Credit
Agreements and the "Notes" defined therein shall be subsumed within and be
governed by this Agreement and the Notes; provided however, that any of
the "Outstanding Obligations" (as defined in each of the Original Credit
Agreement and Multi-Currency Credit Agreement) outstanding under the
Original Credit Agreement and Multi-Currency Credit Agreement shall, for
purposes of this Agreement, be Outstanding Obligations hereunder. The
Lenders' interests in such Outstanding Obligations, and
101
participations in such Letters of Credit shall be reallocated on the
Effective Date in accordance with each Lender's applicable Commitment
Percentage.
(b) Return and Cancellation of Notes. Upon its receipt of the Notes
to be delivered hereunder on the Effective Date, each Lender will promptly
return to the Borrower, marked "Cancelled" or "Replaced", the notes of the
Borrower held by such Lender pursuant to the Existing Credit Agreements.
(c) Interest and Fees Existing Credit Agreements. All interest and
all commitment, facility and other fees and expenses owing or accruing
under or in respect of the Existing Credit Agreements shall be calculated
as of the Effective Date (prorated in the case of any fractional periods),
and shall be paid on the Effective Date in accordance with the method
specified in the Existing Credit Agreements as if such agreements were
still in effect.
[Remainder of Page Intentionally Left Blank]
102
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
By: /s/ GEORGE J. ALBURGER, JR.
--------------------------------
Name: George J. Alburger, Jr.
Title: Chief Financial Officer
LIBERTY PROPERTY TRUST
By: /s/ GEORGE J. ALBURGER, JR.
------------------------------
George J. Alburger, Jr.
Executive Vice President and Chief
Financial Officer
BANK OF AMERICA, N A.,
individually and as Agent, Swingline
Lender and L/C Issuer
By: /s/ MICHAEL W. EDWARDS
----------------------------------
Name: MICHAEL W. EDWARDS
Title: SENIOR VICE PRESIDENT
JPMORGANCHASE BANK, N.A,
individually and as Syndication Agent
By: /s/ MARC E. COSTANTINO
----------------------------------
Name: MARC E. COSTANTINO
Title: VICE PRESIDENT
CITIZENS BANK OF
PENNSYLVANIA, individually and as
Documentation Agent
By: /s/ KELLIE ANDERSON
----------------------------------
Name: Kellie Anderson
Title: Vice President
SUNTRUST BANK, individually and as
Documentation Agent
By: /s/ BLAKE K. THOMPSON
---------------------------------
Name: Blake K. Thompson
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, individually and as
Documentation Agent
By: /s/ ROE E. RUDY
-------------------------------
Name: Roe E. Rudy
Title: Managing Director
PNC BANK, NATIONAL
ASSOCIATION, individually and as
Managing Agent
By: /s/ SHARI L. REAMS
-------------------------------
Name: Shari L. Reams
Title: Senior Vice President
WELLS FARGO BANK, N.A.,
individually and as Managing Agent
By: /s/ CHARLES COOKE
-------------------------------
Name: Charles Cooke
Title: Vice President
KEYBANK, NATIONAL
ASSOCIATION
BY: /s/ JANE E. MCGRATH
-------------------------------
Name: Jane E. McGrath
Title: Vice President
EMIGRANT BANK
By: /s/ DANIEL LEPAGE
-------------------------------
Name: Daniel LePage
Title: Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ DANIEL A. SHIELDS
-------------------------------
Name: Daniel A. Shields
Title: Vice President
WESTLB AG,
NEW YORK BRANCH
By: /s/ LILLIAN TUNG LUM
-------------------------------
Name: Lillian Tung Lum
Title: Executive Director
By: /s/ SAL BATTINELLI
-------------------------------
Name: Sal Battinelli
Title: Managing Director
THE GOVERNOR AND COMPANY
OF THE BANK OF IRELAND
By: /s/ GWEN EVANS
-------------------------------
Name: Gwen Evans
Title: Authorised Signatory
By: /s/ DANIEL MCANENEY
-------------------------------
Name: Daniel McAneney
Title: Authorised Signatory
THE BANK OF NOVA SCOTIA
By: /s/ R. H. BOESE
-------------------------------
Name: R. H. BOESE
Title: MANAGING DIRECTOR
CHANG HWA COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ JIM C. Y CHEN
-------------------------------
Name: Jim C. Y Chen
Title: VP & General Manager
CHEVY CHASE BANK, FSB
By: /s/ MARIE NWOFOR
-------------------------------
Name: Marie Nwofor
Title: AVP
CITICORP NORTH AMERICA INC.
By: /s/ DAVID BOUTIN
-------------------------------
Name: David Boutin
Title: Vice President
CREDIT SUISSE,
CAYMAN ISLANDS BRANCH
By: /s/ BILL O'DALY
-------------------------------
Name: Bill O'Daly
Title: Director
By: /s/ CASSANDRA DROOGAN
-------------------------------
Name: CASSANDRA DROOGAN
Title: ASSOCIATE
MIZUHO CORPORATE BANK, LTD.
By: /s/ NOEL P. PURCE II
-------------------------------
Name: Noel P. Purcell
Title: Senior Vice President
PEOPLE'S BANK
By: /s/ STEVEN JONASSEN
-------------------------------
Name: Steven Jonassen
Title: Vice President
UBS LOAN FINANCE LLC
By: /s/ JOSELIN FERNANDES
-------------------------------
Name: Joselin Fernandes
Associate Director Banking Products
Services, US
By: /s/ DORIS MESA
-------------------------------
Name: Doris Mesa
Title: Associate Director
Banking Products Services, US
UFJ BANK LIMITED
By: /s/ GILDA ACOSTA
-------------------------------
Name: Gilda Acosta
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ DENNIS REDPATH
-------------------------------
Name: Dennis Redpath
Title: Senior Vice President
EXHIBIT A
FORM OF NOTE
[Date]
$[___________]
FOR VALUE RECEIVED, the undersigned, LIBERTY PROPERTY LIMITED PARTNERSHIP,
a Pennsylvania limited partnership (the "BORROWER"), promises to pay, without
offset or counterclaim, to the order of ____________ (hereinafter, together with
its successors in title and assigns, the "LENDER") at the Agent's Head office
(as defined in the Credit Agreement referred to below), the principal sum of, or
the Dollar Equivalent of which is equal to, _____________ DOLLARS ($__________)
or, if less, the aggregate unpaid principal amount of all Loans made by the
Lender to the Borrower pursuant to the Amended and Restated Credit Agreement,
dated as of December [__], 2005, among the Lender, the Borrower, Liberty
Property Trust, the other lending institutions named therein and Bank of
America, N.A., as administrative agent (the "AGENT") (as amended, restated,
replaced, supplemented or modified from time to time, the "CREDIT AGREEMENT").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement. Unless otherwise provided
herein, the rules of interpretation set forth in Section 1.2 of the Credit
Agreement shall be applicable to this Note.
The Borrower also promises to pay (a) principal from time to time at the
times provided in the Credit Agreement and (b) interest from the date hereof on
the principal amount from time to time unpaid at the rates and times set forth
in the Credit Agreement and in all cases in accordance with the terms of the
Credit Agreement. Late charges and other charges and default rate interest shall
be paid by Borrower in accordance with the terms of the Credit Agreement. The
entire outstanding principal amount of this Note, together with all accrued but
unpaid interest thereon, shall be due and payable in full on the Maturity Date.
The Lender may endorse the record relating to this Note with appropriate
notations evidencing advances and payments of principal hereunder as
contemplated by the Credit Agreement. Such notations shall, to the extent not
inconsistent with the notations made by the Agent in the Register, be conclusive
and binding on the Borrower in the absence of manifest error; provided, however,
that the failure of any Lender to make any such notations shall not limit or
otherwise affect any Obligations of the Borrower.
Payments of both principal and interest are to be made in the currency in
which such Loan was made and as specified in the Credit Agreement in Same Day
Funds to the account designated by the Agent pursuant to the Credit Agreement.
This Note is issued pursuant to, is entitled to the benefits of, and is
subject to the provisions of the Credit Agreement. The principal of this Note is
subject to prepayment in whole or in part in the manner and to the extent
specified in the Credit Agreement. The principal of this Note, the interest
accrued on this Note and all other obligations of the Borrower are full recourse
obligations of the Borrower, and all Real Estate Assets and
other properties shall be available for the payment and performance of this
Note, the interest accrued on this Note, and all of such other Obligations.
In case an Event of Default shall occur and be continuing, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower and all the parties hereto, whether as makers, endorsers, or
otherwise, hereby waive presentment for payment, demand protest and notice of
any kind in connection with the delivery, acceptance, performance and
enforcement of this Note, and also hereby assent to extensions of time of
payment or forbearance or other indulgences without notice.
THIS NOTE SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE
PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW TO THE
EXTENT THAT WOULD REQUIRE APPLICATION OF SUBSTANTIVE LAWS OF ANOTHER
JURISDICTION).
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
in its name as of the date first above written.
LIBERTY PROPERTY LIMITED
PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
By: ________________________
Name:
Title:
LOANS AND PRINCIPAL PAYMENTS
Amount of Amount of Unpaid
Loan Made Principal Repaid Principal Balance
------------------- Interest ------------------- -------------------
Prime Eurocurrency Period Prime Eurocurrency Prime Eurocurrency Notation
Date Rate Rate (If Applicable) Rate Rate Rate Rate Total Made By
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
- ---- ----- ------------ --------------- ----- ------------ ----- ------------ ----- --------
EXHIBIT B
FORM OF LOAN REQUEST
Liberty Property Limited Partnership
500 Chesterfield Parkway
Malvern, PA 19355
[Date]
Bank of America, N.A., as Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3714
Attention: Nora Taylor (Fax: (214) 290-9673)
Ladies and Gentlemen:
Re: Loan Request under Amended and Restated Credit Agreement dated as of
December [ ], 2005.
This Loan Request is delivered pursuant to Section 2.5 of the Amended and
Restated Credit Agreement, dated as of December __, 2005, among LIBERTY PROPERTY
LIMITED PARTNERSHIP, a Pennsylvania limited partnership (the "BORROWER"), Bank
of America, N.A. and the other lending institutions from time to time party
thereto (the "LENDERS"), Bank of America, N.A., as administrative agent for
itself and the Lenders (the "AGENT") and the other parties thereto (as amended,
restated, replaced, supplemented or modified from time to time, the "CREDIT
AGREEMENT"). Capitalized terms used herein without definitions herein shall have
the meaning given to them in the Credit Agreement.
We hereby request that the Lenders make a Loan under the Credit Agreement
as follows:
(A) Principal amount requested(1) _________
(B) Proposed Borrowing Date(2) _________
(C) Interest Period(3) _________
- ----------
(1) If this request is for an Alternative Currency Loan, indicate such
amount in the requested currency. Each Loan shall be in a minimum amount of the
Dollar Equivalent of $3,000,000 and an integral multiple of the Dollar
Equivalent of $1,000,000 in excess thereof. The Dollar Equivalent of any
Alternative Currency Loans requested herein shall not exceed the Tranche B
Availability.
(2) Shall be a Business Day at least (a) one (1) Business Day in the case
of Prime Rate Loans, (b) two (2) Business Days in the case of LIBOR Rate Loans,
or (c) four (4) Business days in the case of Eurocurrency Rate Loans denominated
in Alternative Currency, in each case after the date hereof.
(3) For any Eurocurrency Rate Loan 1, 2, or 3 months.
(D) Type of Borrowing(4) _________
(E) [Type of Alternative Currency(5)] [_________]
This Loan Request is submitted pursuant to, and shall be governed by, and
subject to satisfaction of, the terms, conditions and provisions set forth in
Section 2.5 of the Credit Agreement. The Borrower hereby certifies that [, based
upon a conversion rate of ______,] the Tranche [A][B] availability as of the
date hereof, before giving effect to the requested Loan, is __________________,
and that after giving effect to the requested Loan, the sum of the Tranche
[A][B] Obligations and the Tranche [A][B] Letter of Credit Obligations will not
exceed the Tranche [A][B] Commitments.
[The Borrower also certifies that after giving effect to the requested
Loans, the Dollar Equivalent of the sum of (i) all Tranche B Obligations
denominated in Alternative Currency and (ii) all outstanding Tranche B Letter of
Credit Obligations denominated in Alternative Currency is less than or equal to
the lesser of (a) $50,000,000 or (b) the Tranche B Commitments based upon a
conversion rate of ___________.]
The undersigned hereby further certifies to you that it is in compliance
with the covenants specified in Section 9.1 through Section 9.6 of the Credit
Agreement, and will remain in compliance with such covenants after the making of
the requested Loan, as evidenced by a Compliance Certificate in the form of
Exhibit C to the Credit Agreement of even date, herewith delivered to you
simultaneously with this Loan Request. We also understand that if you grant this
request, this request obligates us to accept the requested Loan on such date.
The undersigned hereby certifies to you, in accordance with the provisions
of Section 11.1 of the Credit Agreement, that (i) the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith, were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed Borrowing Date of the Loan requested hereby,
in each case except as otherwise permitted pursuant to the provisions of Section
11.1 of the Credit Agreement, (ii) the Borrower has performed and complied with
all terms and conditions required by Section 11.1 of the Credit Agreement to be
performed by it on or prior to the Borrowing Date, and (iii) no Default or Event
of Default has occurred and is continuing, or is reasonably likely to occur as a
result of making the Loan requested herein.
Please wire transfer the proceeds of the Borrowing in the requested
currency to the accounts [of the following persons](6/) [listed below in the
name of the Borrower and denominated
- ----------
(4) The Borrower shall indicate whether the requested Borrowing is for a
Prime Rate Loan or Eurocurrency Rate Loan.
(5) Sterlings or Euros.
(6/) For Loans denominated in Dollars.
in the currency in which the amount is borrowed](7/) at the financial
institutions indicated respectively:
Person to be Paid
Amount to be Name, Account No.,
Transferred Address, etc.
[$][(euro)][(pound)]______________ __________________________________
__________________________________
Attention: _______________________
Account No.: _____________________
[$][(euro)][(pound)]______________ __________________________________
__________________________________
Attention: _______________________
Account No.: _____________________
Very truly yours,
Liberty Property Limited
Partnership
By: Liberty Property Trust,
its general partner
By: ______________________
Name:
Title:
[ATTACH COMPLIANCE CERTIFICATE]
- ----------
(7/) For Loans denominated in Alternative Currency.
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Liberty Property Limited Partnership
500 Chesterfield Parkway
Malvern, PA 19355
[Date]
Liberty Property Trust, general partner of Liberty Property Limited
Partnership (the "BORROWER"), hereby certifies as of the date hereof the
following:
1. No Defaults. The Responsible Officer signing this Compliance
Certificate on behalf of the Borrower has read a copy of the Amended and
Restated Credit Agreement dated as of December __, 2005 (as amended, restated,
replaced, supplemented or modified from time to time, the "CREDIT AGREEMENT"),
among the Borrower, Liberty Property Trust (the "COMPANY"), Bank of America,
N.A., the other lending institutions party thereto, and BANK OF AMERICA, N.A.,
as administrative agent (the "AGENT"). Terms used herein and not otherwise
defined herein shall have the meanings set forth in Section 1.1 of the Credit
Agreement. No Default is continuing in the performance or observance of any of
the covenants, terms or provisions of the Credit Agreement or any of the other
Loan Documents. Without limiting the foregoing, the Borrower has not taken any
actions which are prohibited by the negative covenants set forth in Section 8 of
the Credit Agreement. Attached hereto as Appendix I are all relevant
calculations needed to determine whether the Borrower is in compliance with
Section 9.1 through Section 9.6, inclusive, and Section 8.2(g), and Section 8.6
of the Credit Agreement as of the end of the most recently completed fiscal
quarter (except that in the case of Compliance Certificates delivered pursuant
to Section 2.5(a), Section 2.10(k), Section 11.1 or Section 7.13, the
calculations determining compliance with Section 9.1, Section 9.2 and Section
9.3 have been computed on a pro forma basis after giving effect to the proposed
transaction and, if the list of Unencumbered Properties and Unencumbered
Development Properties attached hereto has been updated since the list attached
to the most recent Compliance Certificate delivered pursuant to Section 7.4(d),
Value of All Unencumbered Properties and Unencumbered Net Operating Income have
been computed on the basis of such updated list).
2. No Material Changes, Etc. Except as disclosed on Appendix II hereto,
since the Balance Sheet Date, there has been no event or circumstance in the
business, operations, financial or other conditions or prospects of the
Borrower, the Company or any other Related Company, that has had or could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
3. No Materially Adverse Contracts, Etc. Neither the Borrower nor the
Company is subject to any charter, corporate, trust, partnership or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected, in the reasonable judgment of the Company's officers, in the future to
have a Materially Adverse Effect. Neither the Borrower nor the Company is a
party to any contract or agreement that has or is expected, in the reasonable
judgment of the Company's officers, to have a Materially Adverse Effect.
4. [Include for Compliance Certificates delivered pursuant to Section
7.4(d) and Section 7.13 and for other Compliance Certificates as described in
Section 5.1]. Attached hereto as Appendix III is a list of the Unencumbered
Properties as of _____________. The Borrower certifies that each of the Real
Estate Assets listed on Appendix III satisfied on said date, each of the
conditions set forth in the definition of Unencumbered Property, except to the
extent that waivers may have been granted pursuant to Section 5.2. Appendix III
lists for each Unencumbered Property, its street address, name of the owner,
number of square feet and number of leased square feet.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
By: _______________________
Name:
Title:
EXHIBIT D
FORM OF SWINGLINE LOAN REQUEST
Liberty Property Limited Partnership
500 Chesterfield Parkway
Malvern, PA 19355
[Date]
Bank of America, N.A., as Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3714
Attention: Nora Taylor (Fax: (214) 290-9673)
Ladies and Gentlemen:
Re: Swingline Loan Request under Amended and Restated Credit Agreement
dated as of December [ ], 2005
Pursuant to Section 2.8(b) of the Amended and Restated Credit Agreement,
dated as of December __, 2005, among, Liberty Property Limited Partnership, a
Pennsylvania limited partnership (the "BORROWER"), Liberty property Trust, a
Maryland trust, Bank of America, N.A. and the other lending institutions which
are or may become parties thereto from time to time (the "LENDERS"), and Bank of
America, N.A., as administrative agent for itself and the other Lenders (the
"AGENT") (as amended, restated, replaced, supplemented or otherwise modified,
the "CREDIT AGREEMENT"), we hereby request that the Swingline Lender make a
Swingline Loan as follows:
(i) Principal amount requested: $__________
(ii) Proposed Borrowing Date: __________
This Swingline Loan Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in Section 2.8 of the Credit Agreement. As provided
therein, all Swingline Loans are Prime Rate Loans.
The undersigned hereby further certifies to you that it is in compliance
with the covenants specified in Section 9.1 through Section 9.6 of the Credit
Agreement, and will remain in compliance with such covenants after the making of
the requested Swingline Loan. The Borrower also certifies that after giving full
effect to the requested Loans the aggregate principal amount of all outstanding
Swingline Loans is less than or equal to $50,000,000.
We also understand that if you grant this request this request obligates
us to accept the requested Swingline Loan on such date. All terms defined in the
Credit Agreement and used herein without definition shall have the meanings set
forth in Section 1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the provisions
of Section 11.1 of the Credit Agreement, that (i) the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed Borrowing Date of the Swingline Loan requested
hereby, in each case except as otherwise permitted pursuant to the provisions of
Section 11.1 of the Credit Agreement, (ii) the Borrower has performed and
complied with all terms and conditions required by Section 11.1 of the Credit
Agreement to be performed by it on or prior to the Borrowing Date, and (iii) no
Default or Event of Default has occurred and is continuing, or will occur as a
result of the making of the Loan requested herein.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
its general partner
By: ______________________
Name:
Title:
EXHIBIT E
FORM OF
ASSIGNMENT AND ACCEPTANCE
[Dated]
This Assignment and Acceptance (the "ASSIGNMENT AND ACCEPTANCE") is dated
as of the effective date set forth below (the "EFFECTIVE DATE") and is entered
into by and between ________________________ (the "ASSIGNOR") and
_________________________ (the "ASSIGNEE"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended, supplemented, amended and restated or otherwise
modified and in effect from time to time, the "CREDIT AGREEMENT"), receipt of a
copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Acceptance as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent (as contemplated below), (i) all of the Assignor's rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective facilities
identified below (including without limitation any letters of credit and
swingline loans included in such facilities), and (ii) to the extent permitted
to be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as the "ASSIGNED INTEREST").
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Acceptance, without representation or
warranty by the Assignor.
1. Assignor:
2. Assignee: _____________________________________
[and is an Affiliate/Approved Fund of ______________(1)]
3. Borrower: Liberty Property Limited Partnership
4. Agent: Bank of America, N.A., as administrative agent under the
Credit Agreement
- ----------
(1) Select Lender as applicable.
5. Credit Agreement: The Amended and Restated Credit Agreement, dated as of
December __, 2005, by and among Liberty Property
Limited Partnership (the "BORROWER"), Liberty Property
Trust, Bank of America, N.A., the other lenders
party thereto (the "LENDERS"), and the Agent.
6. Assigned Interest: _______________________
Dollar Equivalent of and
Alternative Currency Dollar Equivalent of
Aggregate Amount of and Alternative
Commitment/Loans for all Currency Amount of Percentage
Lenders (including any Commitment/Loans Assigned of
Facility Assigned Letter of Credit Draws) * Assigned * Commitment/Loans(2) CUSIP Number
- --------------------- --------------------------- -------------------- ------------------- ------------
Tranche A Commitment $ $ ________%
Tranche B Commitment $ $ ________%
Tranche A Loans
Prime Rate Loans $ $ ________%
LIBOR Rate Loans $ $ ________%
Tranche B Loans
Prime Rate Loans $ $ ________%
$ $
Eurocurrency Rate (euro) (euro) ________%
Loans (pound) (pound)
- ----------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
$ $
Competitive Bid Loans (euro) (euro) _______%
(pound) (pound)
$ $
Letter of Credit (euro) (euro) _______%
participations interest (pound) (pound)
$ $
Swingline Loan _______%
participations interest
[7. Trade Date: ______________](3)
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Acceptance are hereby agreed to:
ASSIGNOR
------------------
[NAME OF ASSIGNOR]
By: ______________________________
Name:
Title:
ASSIGNEE
-------------------
[NAME OF ASSIGNEE]
By: ______________________________
Name:
Title:
- ----------
(3) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
Consented to and Accepted:
BANK OF AMERICA, N.A.,
acting in its capacity as Agent
By: ________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
acting in its capacity as L/C Issuer
By: ________________________________
Name:
Title:
[Consented to:
LIBERTY PROPERTY LIMITED PARTNERSHIP,
By: Liberty Property Trust,
its general partner
By: ____________________________
Name:
Title:](4)
- ----------
(4) To the extent required under the Credit Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ACCEPTANCE
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Acceptance and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, Liberty Property Trust (the "COMPANY"), any other Guarantor, or
any of their Subsidiaries or Affiliates or any other Person obligated in respect
of any Loan Document or (iv) the performance or observance by the Borrower, the
Company, any Guarantor, or any of their Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Acceptance and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements of an Eligible Assignee under the Credit Agreement
(subject to the receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.4 and Section 7.4 of
the Credit Agreement, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance, and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Agent or any other Lender, (v) if it is a Lender which is not a "United
States person" for United States federal income tax purposes, attached to this
Assignment and Acceptance is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee, and (vi) if the Assignee is not already a Lender under the Credit
Agreement, attached to this Assignment and Acceptance is an administrative
questionnaire, in a form acceptable to the Agent, duly completed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on
the Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in accordance with their terms all of the obligations which
by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. Payments. From and after the Effective Date, the Agent shall make
all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts, which
have accrued to, but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
EXHIBIT F
FORM OF LETTER OF CREDIT REQUEST
Liberty Property Limited Partnership
500 Chesterfield Parkway
Malvern, PA 19355
[Date]
Trade Finance Operations
1 Fleet Way, 2nd Floor
(Fax: (800) 755-8743)
Scranton, PA 19507
Charlotte, North Carolina 28255-0001
Bank of America, N.A., as Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3714
Attention: Nora Taylor (Fax: (214) 290-9673)
Ladies and Gentlemen:
Re: Letter of Credit Request under the Amended and Restated Credit
Agreement dated as of December [ ], 2005
Pursuant to Section 2.9 of the Amended and Restated Credit Agreement,
dated as of December __, 2005, among you, the lending institutions which are or
may become parties thereto from time to time, other parties thereto, and us (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), we hereby request that you issue a Letter of
Credit as follows:
(i) Name and address of beneficiary: ______________
(ii) Face amount: [$][(euro)][(pound)] ____________
(iii) Proposed Issuance Date:______________________________
Proposed Expiration Date(1):___________________________
(iv) Other terms and conditions as set forth in the proposed form of
Letter of Credit attached hereto.
(v) Purpose of Letter of Credit: _______________
- ----------
(1) Each Letter of Credit shall have an initial term of not more than one (1)
year, and shall expire no later than fifteen (15) days (thirty (30) days in the
case of a Letter of Credit denominated in Alternative Currency) prior to the
Maturity Date, except as otherwise provided in the Credit Agreement.
This Letter of Credit Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in Section 2.9 of the Credit Agreement.
The undersigned hereby certifies to you that it is in compliance with the
covenants specified in Section 9.1 through Section 9.6 of the Credit Agreement,
and will remain in compliance with such covenants after the outstanding balance
of the Loans is adjusted to include the face amount of the requested Letter of
Credit.
Pursuant to Section 2.9(a) of the Credit Agreement, the undersigned hereby
further certifies that after giving effect to all Letters of Credit (i) the sum
of the outstanding Tranche A Letter of Credit Obligations and the Dollar
Equivalent of the Tranche B Letter of Credit Obligations does not exceed fifty
million dollars ($50,000,000); (ii) the Dollar Equivalent of the aggregate
Credit Exposure of all the Lenders does not exceed the Maximum Credit Amount;
(iii) the sum of the outstanding Tranche A Obligations and the Tranche A Letter
of Credit Obligations does not exceed the Tranche A Commitments; and (iv) the
sum of the Dollar Equivalent of the outstanding Tranche B Obligations and the
Dollar Equivalent of the outstanding Tranche B Letter of Credit Obligations does
not exceed the Tranche B Commitments.
We also understand that if you grant this request this request obligates
us to accept the requested Letter of Credit and pay the issuance fee and Letter
of Credit fee as required by Section 2.9(c). All terms defined in the Credit
Agreement and used herein without definition shall have the meanings set forth
in Section 1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the provisions
of Section 11.1 of the Credit Agreement, that (i) the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed issuance date of the Letter of Credit
requested hereby, in each case except as otherwise permitted pursuant to the
provisions of Section 11.1 of the Credit Agreement, (ii) the Borrower has
performed and complied with all terms and conditions required by Section 11.1 of
the Credit Agreement to be performed by it on or prior to the issuance date of
this Letter of Credit, (iii) and no Default or Event of Default has occurred and
is continuing, or will occur as a result of the issuance of the Letter of Credit
requested herein.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
its general partner
By: ________________________
Name:
Title:
[ATTACH LETTER OF CREDIT APPLICATION, IF APPLICABLE]
EXHIBIT G
FORM LETTER OF CREDIT APPLICATION
EXHIBIT H
FORM OF COMPETITIVE BID QUOTE REQUEST
Liberty Property Limited Partnership
500 Chesterfield Parkway
Malvern, PA 19355
[Date]
Bank of America, N.A., as Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3714
Attention: Nora Taylor (Fax: (214) 290-9673)
Ladies and Gentlemen:
Re: Competitive Bid Quote Request under Amended and Restated Credit
Agreement dated as of December [ ],2005
Pursuant to Section 2.10 of the Amended and Restated Credit Agreement,
dated as of December __, 2005 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Liberty
Property Limited Partnership, a Pennsylvania limited partnership (the
"BORROWER"), Liberty property Trust, a Maryland trust, Bank of America, N.A. and
the other lending institutions which are or may become parties thereto from time
to time (the "LENDERS"), and Bank of America, N.A., as administrative agent for
itself and the other Lenders (the "AGENT"), we hereby request that the Agent
obtain quotes for Competitive Bid Loans based upon the following:
1. The requested Borrowing Date(s), amounts and Interest Periods of the
Competitive Bid Loans shall be as follows:
Borrowing Dates Amount in the requested currency (1) Interest Period
- --------------- ------------------------------------ ---------------
- --------------- ------------------------------------ ---------------
- --------------- ------------------------------------ ---------------
2. The aggregate amount of the requested Competitive Bid Loans shall be
the Dollar Equivalent of $_______.
3. Dollar Equivalent of all Competitive Bid Loans currently outstanding is
$__________.
- ----------
(1) The Dollar Equivalent of any requested Competitive Bid Loan shall be in a
minimum amount of $5,000,000 and integral multiples of $1,000,000.
4. Type of Loan requested: _______________.
6. [Tranche B Availability: _______________.](2)
This Competitive Bid Quote Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in Section 2.10 of the Credit Agreement. The undersigned
hereby certifies to you that the Borrower maintains the required ratings from
the Ratings Agencies to request a Competitive Bid Loan under the Credit
Agreement in accordance with Section 2.10(a).
The undersigned hereby further certifies to you that it is in compliance
with the covenants specified in Section 9.1 through Section 9.6 of the Credit
Agreement, and will remain in compliance with such covenants after the making of
the requested Competitive Bid Loans, as evidenced by a Compliance Certificate in
the form of Exhibit C to the Credit Agreement of even date herewith delivered to
you simultaneously with this Competitive Bid Quote Request.
The undersigned hereby certifies to you, in accordance with the provisions
of Section 11.1 of the Credit Agreement, that (i) the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed Borrowing Date of the Competitive Bid Loans
requested hereby, in each case except as otherwise permitted pursuant to the
provisions of Section 11.1 of the Credit Agreement, (ii) the Borrower has
performed and complied with all the terms and conditions required by Section
11.1 of the Credit Agreement to be performed by it on or prior to the Borrowing
Date, and (iii) no Default or Event of Default has occurred and is continuing,
or will occur as a result of making the Loans requested herein.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
its general partner
By: ______________________
Name:
Title:
[ATTACH COMPLIANCE CERTIFICATE]
- ----------
(2) Include for Alternative Currency Loans.
EXHIBIT I
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
___________, 20__
To: Each Lender that is a party to the Amended and Restated Credit Agreement
identified below
Re: Invitation for Competitive Bid Quotes
Reference is hereby made to that certain Amended and Restated Credit
Agreement, dated as of December __, 2005 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the "CREDIT AGREEMENT"), among
Liberty Property Limited Partnership, a Pennsylvania limited partnership (the
"BORROWER"), Liberty property Trust, a Maryland trust, Bank of America, N.A. and
the other lending institutions which are or may become parties thereto from time
to time (the "LENDERS"), and Bank of America, N.A., as administrative agent for
itself and the other Lenders (the "AGENT"). Capitalized terms which are used
herein without definition and which are defined in the Credit Agreement shall
have the same meanings herein as in the Credit Agreement.
Pursuant to Section 2.10 of the Credit Agreement, you are invited to
submit a competitive bid quote to the Borrower for the following proposed
Competitive Bid Loan(s):
Requested Borrowing Date Principal Amount Interest Period
- ------------------------ ---------------- ---------------
- ------------------------ ---------------- ---------------
- ------------------------ ---------------- ---------------
All Competitive Bid Quotes should specify a Competitive Bid margin and
must be submitted to the Agent by facsimile transmission at its offices as
specified in or pursuant to Section 19 of the Credit Agreement not later than
(a) 10:00 a.m.(eastern time) on the third Business Day prior to the proposed
Borrowing Date (five (5) Business Days in the case of a request for a
Competitive Bid Quote denominated in Alternative Currency). Quotes received
after these deadlines will not be forwarded to the Borrower.
Submitted bids must be for the Dollar Equivalent of $1,000,000 or a larger
multiple of $500,000 and may not exceed the aggregate principal amount of
Competitive Bid Loans for which offers were requested. All Competitive Bid
Quotes should be submitted in substantially the form of Exhibit J to the Credit
Agreement. Please follow-up your submitted written bids with telephone
verification to confirm receipt.
Very truly yours,
Bank of America, N.A., as Agent
By:_________________________
EXHIBIT J
FORM OF COMPETITIVE BID QUOTE
[Date]
Bank of America, N.A., as Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3714
Attention: Nora Taylor (Fax: (214) 290-9673)
Ladies and Gentlemen:
Re: Competitive Bid Quote to Liberty Property Limited Partnership
This Competitive Bid Quote is given in accordance with Section 2.10 of the
Amended and Restated Credit Agreement, dated as of December __, 2005 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among Liberty Property Limited Partnership, a
Pennsylvania limited partnership (the "BORROWER"), Liberty property Trust, a
Maryland trust, Bank of America, N.A. and the other lending institutions which
are or may become parties thereto from time to time (the "LENDERS"), and Bank of
America, N.A., as administrative agent for itself and the other Lenders (the
"AGENT"). Capitalized terms used herein shall have the meanings ascribed thereto
in the Credit Agreement.
In response to the Competitive Bid Quote Request of the Borrower, dated
________________, 20_, we hereby make the following Competitive Bid Quote on the
following terms:
1. Quoting Lender:_______________________________________________
2. Person to contact at Quoting Lender: _________________________
3. Borrowing Date:_______________________________________________
4. We hereby offer to make Competitive Bid Loan(s) in the following
maximum principal amounts for the following Interest Period(s) and at the
following rates:
Maximum Principal Amount(1)
[$] [(euro)] [(pound)] Interest Period Competitive Bid Margin
- --------------------------- --------------- ----------------------
- --------------------------- --------------- ----------------------
- --------------------------- --------------- ----------------------
- ----------
(1) The Dollar Equivalent of such amount shall be a minimum of $1,000,000 and
an integral multiple of $500,000 and may be greater than the Commitment of the
Quoting Lender.
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) [is][are] accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
By:________________________
Name:
Title:
EXHIBIT K
FORM OF NOTICE OF ACCEPTANCE OR
NON-ACCEPTANCE OF COMPETITIVE BID QUOTE(S)
[Date]
Bank of America, N.A., as Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3714
Attention: Nora Taylor (Fax: (214) 290-9673)
Ladies and Gentlemen:
Under Section 2.10 of the Amended and Restated Credit Agreement, dated as
of December __, 2005 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Liberty
Property Limited Partnership, a Pennsylvania limited partnership (the
"BORROWER"), Liberty property Trust, a Maryland trust, Bank of America, N.A. and
the other lending institutions which are or may become parties thereto from time
to time (the "LENDERS"), and Bank of America N.A., as administrative agent for
itself and the other Lenders (the "AGENT"), this response is given with respect
to the Competitive Bid Loan Quotes for Loans to be made on the following
Requested Borrowing Date: [_______ __, 20_]
Liberty Property Limited Partnership hereby accepts the following
Competitive Bid Quote(s):
Competitive Bid
Lender Borrowing Date Margin Interest Period Principal Amount Accepted
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
Liberty Property Limited Partnership hereby rejects the following
Competitive Bid Quote(s):
Competitive Bid
Lender Borrowing Date Margin Interest Period Principal Amount Accepted
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
- ------ -------------- --------------- --------------- -------------------------
The accepted and rejected competitive Bid Quotes described above
constitute all Competitive Bid Quotes submitted by the Lenders in accordance
with Section 2.10 of the Credit Agreement.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
its general partner
By: _______________________
Name:
Title:
EXHIBIT L
FORM OF JOINDER AGREEMENT
[Date]
Bank of America, N.A., as Agent
Independence Center
101 North Tyron Street
Charlotte, North Carolina 28255-001
Attention: Cindy Fisher (Fax: (704) 409-0180)
Reference is made to the Amended and Restated Credit Agreement, dated as
of December __, 2005 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Liberty
Property Limited Partnership, a Pennsylvania limited partnership (the
"BORROWER"), Liberty property Trust, a Maryland trust, Bank of America, N.A. and
the other lending institutions which are or may become parties thereto from time
to time (the "LENDERS"), and Bank of America, N.A., as administrative agent for
itself and the other Lenders (the "AGENT"). Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
Reference is further made to the Guaranty, dated as of December __, 2005,
by the Guarantors in favor of the Agent and the Lenders (the "GUARANTY"):
The undersigned, ________________, a ________________ ("NEW GUARANTOR")
certifies that it is a Related Company that is at least 85% owned by the
Borrower. In order that Real Estate Assets owned by the New Guarantor may be
eligible to satisfy the requirements contained in the definitions of
Unencumbered Property and Unencumbered Development Property in Section 1.1 of
the Agreement, and for other good and valuable consideration, the New Guarantor
hereby agrees to be bound as a Guarantor by all of the terms, covenants and
conditions set forth in the Agreement and the Guaranty to the same extent that
it would have been bound if it had been a signatory to the Agreement and the
Guaranty on the Effective Date of the Agreement. The New Guarantor hereby makes
each of the representations and warranties and agrees to each of the covenants
applicable to the Guarantor contained in the Credit Agreement. From and after
the date hereof, all references in the Loan Documents to the "Guarantors" shall
for all purposes be deemed to include the undersigned.
The New Guaranty hereby waives presentment, demand, protest and notice of
any kind in connection with the delivery, acceptance, performance and
enforcement of the Guaranty, and also hereby assents to extensions of time of
payment or forbearance or other indulgences without notice.
This Joinder Agreement and the obligations of the New Guarantor hereunder
shall be governed by, interpreted and construed in accordance with all of the
same provisions applicable under the Credit Agreement and the Guaranty
including, without limitation, all definitions set forth in Section 1.1, the
rules of interpretation set forth in Section 1.2, the provisions relating to
governing law set forth in Section 20, the provisions relating to counterparts
in Section 22 and the provision relating to
severability in Section 26. The New Guarantor acknowledges that it has waived
its right to a jury trial with respect to any action or claim arising out of
this Joinder Agreement, the Credit Agreement and the Guaranty.
IN WITNESS WHEREOF, the New Guarantor has caused this Joinder Agreement to
be executed and delivered by its duly authorized officer as of the
_________________ day of ____________, 20_.
[Name of New Guarantor]
By:____________________________
Name:
Title:
EXHIBIT M
FORM OF GUARANTY
Guaranty, dated as of December [__], 2005, by and among the undersigned
and such other Persons which may become party hereto from time to time by
executing a joinder (in the form of Appendix 1 hereto) (each a "GUARANTOR" and
collectively the "GUARANTORS"), in favor of each of the Lenders (as defined
herein) and Bank of America, N.A., as administrative agent (the "AGENT") for
itself and for the other financial institutions (the "LENDERS") which are or may
become parties to the Amended and Restated Credit Agreement, dated as of
December [__], 2005, among Liberty Property Limited Partnership, a Maryland
limited partnership (the "BORROWER"), Liberty Property Trust, the Agent, and the
Lenders (as amended, supplemented, amended and restated or otherwise modified
from time to time, the "CREDIT AGREEMENT"). Capitalized terms used herein
without definition shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Borrower, the Agent, the Lenders and the other parties
thereto have entered into the Credit Agreement;
WHEREAS, the Borrower and each Guarantor are members of a group of related
entities, the success of each of which is dependent in part on the success of
the other members of such group;
WHEREAS, each Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Borrower by the Lenders pursuant
to the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Agent's and the Lenders'
willingness to extend, and to continue to extend, credit to the Borrower under
the Credit Agreement that each Guarantor execute and deliver this Guaranty; and
WHEREAS, each Guarantor wishes to guaranty the Borrower's obligations to
the Lenders and the Agent under and in respect of the Credit Agreement as herein
provided.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Guaranty of Payment and Performance of Obligations. In consideration of
the Lenders' extending credit or otherwise in their discretion giving time,
financial or banking facilities or accommodations to the Borrower, each
Guarantor hereby jointly and severally, absolutely, irrevocably and
unconditionally guarantees to the Agent and each Lender that the Borrower will
duly and punctually pay or perform, at the place specified therefor, or if no
place is specified, at the Agent's Head Office, (i) all indebtedness,
obligations and liabilities of the Borrower to any of the Lenders and the Agent,
individually or collectively, under the Credit Agreement or any of the other
Loan Documents or in respect of any of the Loans or the Notes or other
instruments at any time evidencing any thereof, whether existing on the date of
the Credit Agreement or arising or incurred thereafter, direct or indirect,
secured or unsecured, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, arising by contract, operation of law or otherwise, including all
such which would become due but for the operation of the automatic stay pursuant
to Section 362(a) of the Federal Bankruptcy Code and the operation of Sections
502(b) and 506(b) of the Federal Bankruptcy Code; and (ii) without limitation of
tHe foregoing, all reasonable fees, costs and expenses incurred by the Agent or
the Lenders in attempting to collect or enforce any of the foregoing, accrued in
each case to the date of payment hereunder (collectively the "OBLIGATIONS" and
individually an "OBLIGATION"). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance by the
Borrower of the Obligations and not of their collectibility only, and is in no
way conditioned upon any requirement that any Lender or the Agent first attempt
to collect any of the Obligations from the Borrower or resort to any security or
other means of obtaining payment of any of the Obligations which any Lender or
the Agent now has or may acquire after the date hereof or upon any other
contingency whatsoever. Upon any Event of Default which is continuing by the
Borrower in the full and punctual payment and performance of the Obligations,
the liabilities and obligations of each Guarantor hereunder shall, at the option
of the Agent, become forthwith due and payable to the Agent and to the Lender or
Lenders owed the same without demand or notice of any nature, all of which are
expressly waived by each Guarantor, except for notices required to be given to
the Borrower under the Loan Documents. Payments by the Guarantors hereunder may
be required by any Lender or the Agent on any number of occasions.
2. Guarantor's Further Agreements to Pay. Each Guarantor further jointly
and severally agrees, as the principal obligor and not as a guarantor only, to
pay to each Lender and the Agent forthwith upon demand, in funds immediately
available to such Lender or the Agent, all costs and expenses (including court
costs and legal fees and expenses) incurred or expended by the Agent or such
Lender in connection with this Guaranty and the enforcement hereof, together
with interest on amounts recoverable under this Guaranty from the time after
such amounts become due at the default rate of interest set forth in the Credit
Agreement; provided that if such interest exceeds the maximum amount permitted
to be paid under applicable law, then such interest shall be reduced to such
maximum permitted amount.
3. Payments. Each Guarantor jointly and severally covenants and agrees
that the Obligations will be paid strictly in accordance with their respective
terms 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 Agent or any
Lender with respect thereto. Without limiting the generality of the foregoing,
each Guarantor's obligations hereunder with respect to any Obligation shall not
be discharged by a payment in a currency other than the currency in which the
Obligation is denominated (the "OBLIGATION CURRENCY") or at a place other than
the place specified for the payment of the Obligation, whether pursuant to a
judgment or otherwise, to the extent that the amount so paid on conversion to
the Obligation Currency and transferred to the Agent's Head Office, under normal
banking procedures does not yield the amount of Obligation Currency due
thereunder.
4. Taxes. All payments hereunder shall be made without any counterclaim or
set-off, free and clear of, and without reduction by reason of, any taxes,
levies, imposts, charges and withholdings, restrictions or conditions of any
nature ("TAXES"), which are now or may hereafter be imposed, levied or assessed
by the United States or any political subdivision or taxing
authority thereof (or any non-United States jurisdiction in which there is Real
Estate) on payments hereunder, all of which will be for the account of and paid
by the Guarantors. If for any reason, any such reduction is made or any Taxes
are paid by the Agent or any Lender (except for taxes on income or profits of
such Agent or Lender), each Guarantor jointly and severally agrees to pay to the
Agent or such Lender such additional amounts as may be necessary to ensure that
the Agent or such Lender receives the same net amount which it would have
received had no reduction been made or Taxes paid.
5. Consent to Jurisdiction. Each Guarantor agrees that any suit for the
enforcement of this Guaranty or any of the other Loan Documents may be brought
in the courts of the State of New York sitting in New York, New York or any
federal court sitting in New York, New York and consents to the non-exclusive
jurisdiction of such courts and the service of process in any such suit being
made upon such Guarantor by mail at the address specified herein. Except to the
extent such waiver is expressly prohibited by law, each Guarantor hereby waives
any objection that it may now or hereafter have to the venue of any such suit or
any such court or that such suit is brought in an inconvenient court.
6. Liability of each Guarantor. The Agent and each Lender have and shall
have the absolute right to enforce the liability of each Guarantor hereunder
without resort to any other right or remedy including any right or remedy under
any other guaranty or against any other Guarantor, and the release or discharge
of any Guarantor or other guarantor of any Obligations shall not affect the
continuing liability of each Guarantor hereunder that has not been released or
discharged.
It is the intention and agreement of each Guarantor, the Agent and the
Lenders that the obligations of each Guarantor under this Guaranty shall be
joint and several and valid and enforceable against each Guarantor to the
maximum extent permitted by applicable law. Accordingly, if any provision of
this Guaranty creating any obligation of any Guarantor in favor of the Agent and
the Lenders shall be declared to be invalid or unenforceable in any respect or
to any extent, it is the stated intention and agreement of the Guarantors, the
Agent and the Lenders that any balance of the obligation created by such
provision and all other obligations of each of the other Guarantors to the Agent
and the Lenders created by other provisions of this Guaranty shall remain valid
and enforceable. Likewise, if by final order a court of competent jurisdiction
shall declare any sums which the Agent or the Lenders may be otherwise entitled
to collect from any Guarantor under this Guaranty to be in excess of those
permitted under any law (including any federal or state fraudulent conveyance or
like statute or rule of law) applicable to such Guarantor's obligations under
this Guaranty, it is the stated intention and agreement of the Guarantors, the
Agent and the Lenders that all sums not in excess of those permitted under such
applicable law shall remain fully collectible by the Agent and the Lenders from
each of the other Guarantors, jointly and severally.
7. Representations and Warranties; Covenants. (a) Each Guarantor hereby
makes and confirms the representations and warranties made on its behalf by the
Borrower pursuant to Section 6 of the Credit Agreement, as if such
representations and warranties were set forth herein. Each Guarantor hereby
agrees to perform the covenants set forth in Sections 7 and 8 of the Credit
Agreement (to the extent such covenants expressly apply to the Guarantor) as if
such covenants were set forth herein. Each Guarantor acknowledges that it is, on
a collective basis with the Borrower and
all other "Guarantors" (as defined in the Credit Agreement), bound by the
covenants set forth in Section 9 of the Credit Agreement. Each Guarantor hereby
confirms that it shall be bound by all acts or omissions of the Borrower
pursuant to the Credit Agreement.
(b) Each Guarantor is a limited liability company, limited
partnership, corporation, or other legal entity, as applicable, duly formed or
organized, validly existing and in good standing under the laws of the state of
its formation or organization and each other state in which its business
necessitates it to foreign qualify; each Guarantor has all requisite limited
liability company, limited partnership, corporate or other legal entity power,
as applicable, to own its respective properties and conduct its respective
business as now conducted and as presently contemplated; and such Guarantor is
in good standing as a foreign entity and is duly authorized to do business in
the jurisdictions where the Unencumbered Properties or other Real Estate owned
or ground-leased by it are located and in each other jurisdiction where such
qualification is necessary except where a failure to be so qualified in such
other jurisdiction would not have a materially adverse effect on any of its
businesses, assets or financial condition. The execution, delivery and
performance of this Guaranty and the transactions contemplated hereby (i) are
within the authority of such Guarantor, (ii) have been duly authorized by all
necessary proceedings on the part of such Guarantor and any member, manager, or
other controlling Person thereof, (iii) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or regulation to
which such Guarantor is subject or any judgment, order, writ, injunction,
license or permit applicable to such Guarantor, (iv) do not conflict with any
provision of the Certificate of Organization or Formation, the limited liability
company agreement, articles of incorporation, bylaws, or other authority
documents of such Guarantor or the authority documents of any controlling Person
thereof, and (v) do not contravene any provisions of, or constitute a default,
Default or Event of Default hereunder or a failure to comply with any term,
condition or provision of, any other agreement, instrument, judgment, order,
decree, permit, license or undertaking binding upon or applicable to such
Guarantor or any of such Guarantor's properties (except for any such failure to
comply under any such other agreement, instrument, judgment, order, decree,
permit, license, or undertaking as would not materially and adversely affect the
condition (financial or otherwise), properties, business or results of
operations of such Guarantor) or result in the creation of any mortgage, pledge,
security interest, lien, encumbrance or charge upon any of the properties or
assets of such Guarantor.
(c) The Guaranty has been duly executed and delivered and
constitutes the legal, valid and binding obligations of each Guarantor, subject
only to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and general equitable principles.
(d) The execution, delivery and performance by each Guarantor of
this Guaranty and the transactions contemplated hereby do not require (i) the
approval or consent of any governmental agency or authority other than those
already obtained, or (ii) filing with any governmental agency or authority,
other than filings which will be made with the SEC when and as required by law.
8. Effectiveness. The obligations of each Guarantor under this Guaranty
shall continue in full force and effect and shall remain in operation until all
of the Obligations shall
have been paid in full or otherwise fully satisfied, and continue to be
effective or be reinstated, as the case may be, if at any time payment or other
satisfaction of any of the Obligations is rescinded or must otherwise be
restored or returned upon the bankruptcy, insolvency, or reorganization of the
Borrower, or otherwise, as though such payment had not been made or other
satisfaction occurred. No invalidity, irregularity or unenforceability of the
Obligations by reason of applicable bankruptcy laws or any other similar law, or
by reason of any law or order of any government or agency thereof purporting to
reduce, amend or otherwise affect the Obligations, shall impair, affect, be a
defense to or claim against the obligations of any Guarantor under this
Guaranty.
9. Freedom of Lender to Deal with Borrower and Other Parties. The Agent
and each Lender shall be at liberty, without giving notice to or obtaining the
assent of any Guarantor and without relieving any Guarantor of any liability
hereunder, to deal with the Borrower and with each other party who now is or
after the date hereof becomes liable in any manner for any of the Obligations,
in such manner as the Agent or such Lender in its sole discretion deems fit, and
to this end each Guarantor gives to the Agent and each Lender full authority in
its sole discretion to do any or all of the following things: (a) extend credit,
make loans and afford other financial accommodations to the Borrower at such
times, in such amounts and on such terms as the Agent or such Lender may
approve, (b) vary the terms and grant extensions of any present or future
indebtedness or obligation of the Borrower or of any other party to the Agent or
such Lender, (c) grant time, waivers and other indulgences in respect thereto,
(d) vary, exchange, release or discharge, wholly or partially, or delay in or
abstain from perfecting and enforcing any security or guaranty or other means of
obtaining payment of any of the Obligations which the Agent or any Lender now
has or may acquire after the date hereof, (e) accept partial payments from the
Borrower or any such other party, (f) release or discharge, wholly or partially,
any endorser or guarantor, and (g) compromise or make any settlement or other
arrangement with the Borrower or any such other party.
10. Unenforceability of Obligations Against Borrower; Invalidity of
Security or Other Guaranties. If for any reason the Borrower has no legal
existence or are under no legal obligation to discharge any of the Obligations
undertaken or purported to be undertaken by it or on its behalf, or if any of
the moneys included in the Obligations have become irrecoverable from the
Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on each Guarantor to the same extent as if such
Guarantor at all times had been the principal debtor on all such Obligations.
This Guaranty shall be in addition to any other guaranty or other security for
the Obligations, and it shall not be prejudiced or rendered unenforceable by the
invalidity of any such other guaranty or security.
11. Waivers by Guarantor. Each Guarantor waives notice of acceptance
hereof, notice of any action taken or omitted by the Agent or any Lender in
reliance hereon, and any requirement that the Agent or any Lender be diligent or
prompt in making demands hereunder, giving notice of any default by the Borrower
or asserting any other rights of the Agent or any Lender hereunder. Each
Guarantor also irrevocably waives, to the fullest extent permitted by law, all
defenses in the nature of suretyship that at any time may be available in
respect of such Guarantor's obligations hereunder by virtue of any statute of
limitations, valuation, stay, moratorium law or other similar law now or
hereafter in effect.
12. Restriction on Subrogation and Contribution Rights. Notwithstanding
any other provision to the contrary contained herein or provided by applicable
law, unless and until all of the Obligations have been indefeasibly paid in full
in cash and satisfied in full, each Guarantor hereby irrevocably defers and
agrees not to enforce any and all rights it may have at any time (whether
arising directly or indirectly, by operation of law or by contract) to assert
any claim against the Borrower on account of payments made under this Guaranty,
including, without limitation, any and all rights of or claim for subrogation,
contribution, reimbursement, exoneration and indemnity, and further waives any
benefit of and any right to participate in any collateral which may be held by
the Agent or any Lender or any affiliate of the Agent or any Lender. In
addition, each Guarantor will not claim any set-off or counterclaim against the
Borrower in respect of any liability it may have to the Borrower unless and
until all of the Obligations have been indefeasibly paid in full in cash and
satisfied in full.
Subject to the foregoing and the indefeasible performance and payment in
full of the Obligations, each Guarantor acknowledges that all other "Guarantors"
shall have contribution rights against such Guarantor in accordance with
applicable law and in accordance with each such Person's benefits received under
the Credit Agreement and the Loans.
13. Demands. Any demand on or notice made or required to be given pursuant
to this Guaranty shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, return
receipt requested, sent by overnight courier, or sent by telegraph, telecopy,
telefax or telex and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to the Guarantors, at:
Liberty Property Trust
500 Chesterfield Parkway,
Malvern, PA 19355
Attention: Chief Financial Officer
or at such other address for notice as the Guarantors shall
last have furnished in writing to the Agent with a copy to:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street
22nd Floor
Philadelphia, PA 19103
Attention: Michael Sherman, Esq.
or at such other address for notice as the Guarantors shall last
have furnished in writing to the Agent; and
(b) if to the Agent, at
Bank of America, N.A.
Independence Center
101 North Tyron Street
Charlotte, North Carolina 28255-0001
Attention: Cindy Fisher (Fax: (704) 409-0180)
or at such other address for notice as the Agent shall last have
furnished in writing to the Guarantors; and
Bingham McCutchen, LLP,
150 Federal Street
Boston, Massachusetts 02110-1726
Attention: Stephen M. Miklus, Esq.
or at such other address for notice as the Agent shall last have
furnished in writing to the Guarantors; and
(c) if to any Lender, at such Lender's address as set forth in
Schedule 1.2 to the Credit Agreement or as shall have last
been furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to the party to which it is directed, at the time of the receipt
thereof by such party or the sending of such facsimile or (ii) if sent by
registered or certified first-class mail, postage prepaid, return receipt
requested, on the fifth Business Day following the mailing thereof.
14. Amendments, Waivers, Etc. No provision of this Guaranty can be
changed, waived, discharged or terminated except by an instrument in writing
signed by the Agent and the Guarantors expressly referring to the provision of
this Guaranty to which such instrument relates; and no such waiver shall extend
to, affect or impair any right with respect to any Obligation which is not
expressly dealt with therein. No course of dealing or delay or omission on the
part of the Agent or the Lenders or any of them in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto.
15. Further Assurances. Each Guarantor at its sole cost and expense agrees
to do all such things and execute, acknowledge and deliver all such documents
and instruments as the Agent from time to time may reasonably request in order
to give full effect to this Guaranty and to perfect and preserve the rights and
powers of the Agent and the Lenders hereunder.
16. Miscellaneous Provisions. This Guaranty is intended to take effect as
a sealed instrument to be governed by and construed in accordance with the laws
of the State of New York and shall inure to the benefit of the Agent, each
Lender and its respective successors in title and assigns permitted under the
Credit Agreement, and shall be binding on each Guarantor and each Guarantor's
successors in title, assigns and legal representatives. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement. The invalidity or unenforceability of any one or more
sections of this Guaranty shall not affect the validity or enforceability of its
remaining provisions. Captions are for ease of reference only and shall not
affect the meaning of the relevant provisions. The meanings of all
defined terms used in this Guaranty shall be equally applicable to the singular
and plural forms of the terms defined.
17. WAIVER OF JURY TRIAL. EXCEPT TO THE EXTENT SUCH WAIVER IS EXPRESSLY
PROHIBITED BY LAW, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING
OUT OF THIS GUARANTY, THE OBLIGATIONS, OR ANY INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING,
AMONG THE GUARANTORS, THE BORROWER, THE AGENT AND/OR THE LENDERS. THIS WAIVER OF
JURY TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY DOCUMENT EXECUTED BY THE
GUARANTORS, THE AGENT OR THE LENDERS AND DELIVERED TO THE AGENT OR THE LENDERS,
AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER OF
JURY TRIAL. EACH GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND
FREELY MADE.
IN WITNESS WHEREOF, each Guarantor has executed and delivered this
Guaranty as of the date first above written.
GUARANTOR
___________________________________
By: _______________________________
Name:
Title:
EXHIBIT N
FORM OF DESIGNATED BANK NOTE
$______________ [Date]
FOR VALUE RECEIVED, the undersigned Liberty Property Limited Partnership,
a Pennsylvania limited partnership (the "BORROWER"), hereby promises to pay to
the order of __________________ (the "DESIGNATED BANK") at the Agent's Head
Office (as defined in the Credit Agreement defined below):
(a) prior to or on the Maturity Date (as defined in the Credit
Agreement referred to below) the principal sum of, or the Dollar
Equivalent of which is equal to, ______________________ Dollars
($_______________) or, if less, the aggregate unpaid principal amount of
Competitive Bid Loans advanced by the Lender to the Borrower pursuant to
the Amended and Restated Credit Agreement dated as of December __, 2005
(as amended, restated, replaced, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"), among the Borrower, Bank of
America, N.A., as Agent, and other parties thereto; and
(b) interest on the principal balance hereof from time to time
outstanding at the times and at the rates provided in the Credit
Agreement.
Payments of both principal and interest are to be made in the currency in
which such Loans were made and as specified in the Credit Agreement in Same Day
Funds to the account designated by the Agent pursuant to the Credit Agreement.
This Designated Bank Note evidences borrowings under and has been issued
by the Borrower in accordance with the terms of the Credit Agreement. The
Designated Bank and any holder hereof pursuant to the Credit Agreement or by
operation of law is entitled to the benefits of the Credit Agreement and the
other Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Designated Bank
Note and not otherwise defined herein shall have the same meanings herein as in
the Credit Agreement.
The Borrower irrevocably authorizes the Lender to make or cause to be
made, at the time of receipt of any payment of principal of this Designated Bank
Note, an appropriate notation on the grid attached to this Designated Bank Note,
or the continuation of such grid, or any other similar record, including
computer records, reflecting the making of such Competitive Bid Loan or the
receipt of such payment. The outstanding amount of the Competitive Bid Loan set
forth on the grid attached to this Designated Bank Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by the Designated Bank with respect to any Competitive Bid Loans shall be prima
facie evidence of the principal amount thereof
owing and unpaid to the Designated Bank, but the failure to record, or any error
in so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of the Borrower hereunder or
under the Credit Agreement to make payments of principal of and interest on this
Designated Bank Note when due to the extent of the unpaid principal and interest
amount as of any date of determination.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Designated Bank Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Designated Bank Note and all of the unpaid interest
accrued thereon may become or be declared due and payable in the manner and with
the effect provided in the Credit Agreement.
No delay or omission on the part of the Designated Bank or any holder
hereof in exercising any right hereunder shall operate as a waiver of such right
or of any other rights of the Designated Bank or such holder, nor shall any
delay, omission or waiver on any one occasion be deemed a bar or waiver of the
same or any other right on any further occasion.
The Borrower and every endorser and guarantor of this Designated Bank Note
or the obligation represented hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Designated Bank Note, and assents to
any extension or postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of collateral and to the addition or
release of any other party or person primarily or secondarily liable.
THIS DESIGNATED BANK NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER
SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW TO THE EXTENT THAT WOULD REQUIRE APPLICATION OF SUBSTANTIVE LAWS OF
ANOTHER JURISDICTION). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS DESIGNATED BANK NOTE MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR ANY FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 19 OF THE
CREDIT AGREEMENT. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
IN WITNESS WHEREOF, the undersigned has caused this Designated Bank Note
to be signed in its partnership name by its duly authorized officer as of the
day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
By: _______________________
Name:
Title:
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
- ---- ------- -------------- ---------- --------
EXHIBIT O
FORM OF DESIGNATION AGREEMENT
[Date]
Reference is hereby made to the Amended and Restated Credit Agreement,
dated as of December __, 2005 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among Liberty
Property Limited Partnership, a Pennsylvania limited partnership (the
"BORROWER"), LIBERTY PROPERTY TRUST, a Maryland Trust, Bank of America, N.A. and
the other lending institutions which are or may become parties thereto from time
to time (the "LENDERS"), and Bank of America, N.A., as Agent for itself and the
other Lenders (the "AGENT"). Terms used but not otherwise defined herein shall
have the meanings given to them in the Credit Agreement.
[NAME OF DESIGNOR] (the "DESIGNOR") and [NAME OF DESIGNEE] (the
"DESIGNEE") agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans on
behalf of the Designor, pursuant to Section 2.10 of the Credit Agreement. Any
assignment by Designor to Designee of its rights to make a Competitive Bid Loan
pursuant to Section 18.9 of the Credit Agreement shall be effective as of the
effective date specified in this Designation Agreement.
2. Except as set forth in Section 7 below (solely with respect to the
Designor), none of the Designor, any other Lender or the Agent makes any
representation or warranty or assumes any responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or any other
instrument or document furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument and document furnished pursuant thereto or (b) the
financial condition of the Borrower or the performance or observance by the
Borrower of any of their obligations under any Loan Document or any other
instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (b) agrees that it will independently and without
reliance upon the Agent, the Arranger, the L/C Issuer, the Swingline Lender, any
other agent named in the Credit Agreement, the Designor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under any Loan Document; (c) confirms that it is a Designated Bank; (d) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under any Loan Document as are delegated to
the Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental
thereto; and (e) agrees to be bound by each and every provision of each Loan
Document and further agrees that it will perform in accordance with their terms
all of the obligations which by the terms of any Loan Document are required to
be performed by it as a Designated Bank, including any and all obligations set
forth in Section 18.9 of the Credit Agreement.
4. The Designee hereby appoints Designor as Designee's agent and attorney
in fact, and grants to Designor an irrevocable power of attorney, to receive
payments made for the benefit of Designee under the Credit Agreement, to deliver
and receive all communications and notices under the Credit Agreement and other
Loan Documents and to exercise on Designee's behalf all rights to vote and to
grant and make approvals, waivers, consents or amendments to or under the Credit
Agreement or other Loan Documents. Any document executed by the Designor on the
Designee's behalf in connection with the Credit Agreement or other Loan
Documents shall be binding on the Designee to the same extent as if actually
signed by the Designee. The Borrower, the Agent and each of the other Lenders
may rely on and are third-party beneficiaries of the preceding provisions
entitled to directly enforce the same.
5. Following the execution of this Designation Agreement by the Designor
and Designee, it will be delivered to the Agent for acceptance and recording by
the Agent. The effective date for this Designation Agreement (the "EFFECTIVE
DATE") shall be the date of acceptance hereof by the Agent, unless otherwise
specified on the signature page hereto.
6. The Designor unconditionally agrees to pay or reimburse the Designee
for, and save the Designee harmless against, all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Loan Documents against the Designee, in its
capacity as such, in any way relating to or arising out of this Designation
Agreement or any other Loan Documents or any action taken or omitted by the
Designee hereunder or thereunder.
7. Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to make
Competitive Bid Loans as a Lender pursuant to Section 2.10 of the Credit
Agreement and the rights and obligations of a Lender related thereto; provided,
however, that the Designee shall not be required to make payments with respect
to such obligations except to the extent of excess cash flow of the Designee
which is not otherwise required to repay obligations of the Designee which are
then due and payable. Notwithstanding the foregoing, the Designor, as agent for
the Designee, shall be and remain obligated to the Borrower, the Agent, and the
other Lenders for each and every of the obligations of the Designee and the
Designor with respect to the Credit Agreement and any sums otherwise payable to
the Borrower by the Designee.
8. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (excluding the laws
applicable to conflicts or choice of law to the extent that would require
application of substantive laws of another jurisdiction).
9. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be
\
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Designation Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date: ____________ ____, 200__
[NAME OF DESIGNOR], as
Designor
By: ___________________________________
Name:
Title:
[NAME OF DESIGNEE], as
Designee
By: ___________________________________
Name:
Title:
Eurocurrency Lending Office (and address for
notices):
[ADDRESS]
Accepted this _____ day
of ____________, 200__
BANK OF AMERICA, N.A.,
as Agent
By: ________________________
Name:
Title:
____________________________