EXECUTION COPY
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CREDIT AGREEMENT
Dated as of April 30, 2001
by and among
HRPT Properties Trust,
as Borrower
FIRST UNION
SECURITIES, INC.,
as Lead Arranger,
FLEET NATIONAL BANK,
as Co-Lead Arranger,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
Each of
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
THE BANK OF NEW YORK,
and
FLEET NATIONAL BANK,
as Documentation Agents,
and
The financial institutions party hereto
and their assignees under Section 12.5.,
as Lenders
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TABLE OF CONTENTS
Article I. Definitions............................................................................1
Section 1.1. Definitions................................................................1
Section 1.2. General; References to Times..............................................23
Article II. Credit Facility......................................................................23
Section 2.1. Revolving Loans...........................................................23
Section 2.2. Bid Rate Loans............................................................24
Section 2.3. Swingline Loans...........................................................27
Section 2.4. Letters of Credit.........................................................30
Section 2.5. Rates and Payment of Interest on Loans....................................33
Section 2.6. Number of Interest Periods................................................34
Section 2.7. Repayment of Loans........................................................34
Section 2.8. Prepayments...............................................................35
Section 2.9. Continuation..............................................................35
Section 2.10. Conversion...............................................................36
Section 2.11. Notes....................................................................36
Section 2.12. Voluntary Reductions of the Commitment...................................37
Section 2.13. Earlier Termination Date.................................................37
Section 2.14. Expiration or Maturity Date of Letters of Credit Past
Termination Date........................................................37
Section 2.15. Amount Limitations.......................................................37
Section 2.16. Increase of Commitments..................................................38
Article III. Payments, Fees and Other General Provisions.........................................39
Section 3.1. Payments..................................................................39
Section 3.2. Pro Rata Treatment........................................................39
Section 3.3. Sharing of Payments, Etc..................................................40
Section 3.4. Several Obligations.......................................................40
Section 3.5. Minimum Amounts...........................................................41
Section 3.6. Fees......................................................................41
Section 3.7. Computations..............................................................42
Section 3.8. Usury.....................................................................42
Section 3.9. Agreement Regarding Interest and Charges..................................42
Section 3.10. Statements of Account....................................................42
Section 3.11. Defaulting Lenders.......................................................43
Section 3.12. Taxes....................................................................44
Article IV. Yield Protection, Etc................................................................46
Section 4.1. Additional Costs; Capital Adequacy........................................46
Section 4.2. Suspension of LIBOR Loans.................................................47
Section 4.3. Illegality................................................................47
Section 4.4. Compensation..............................................................48
Section 4.5. Affected Lenders..........................................................48
Section 4.6. Treatment of Affected Loans...............................................49
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Section 4.7. Change of Lending Office..................................................49
Section 4.8. Assumptions Concerning Funding of LIBOR Loans.............................50
Article V. Conditions Precedent..................................................................50
Section 5.1. Initial Conditions Precedent..............................................50
Section 5.2. Conditions Precedent to All Loans and Letters of Credit...................52
Section 5.3. Conditions as Covenants...................................................53
Article VI. Representations and Warranties.......................................................53
Section 6.1. Representations and Warranties............................................53
Section 6.2. Survival of Representations and Warranties, Etc...........................59
Article VII. Affirmative Covenants...............................................................59
Section 7.1. Preservation of Existence and Similar Matters.............................59
Section 7.2. Compliance with Applicable Law and Material Contracts.....................60
Section 7.3. Maintenance of Property...................................................60
Section 7.4. Conduct of Business.......................................................60
Section 7.5. Insurance.................................................................60
Section 7.6. Payment of Taxes and Claims...............................................60
Section 7.7. Visits and Inspections....................................................61
Section 7.8. Use of Proceeds; Letters of Credit........................................61
Section 7.9. Environmental Matters.....................................................61
Section 7.10. Books and Records........................................................62
Section 7.11. Further Assurances.......................................................62
Section 7.12. New Subsidiaries/Guarantors..............................................62
Section 7.13. REIT Status..............................................................63
Section 7.14. Exchange Listing.........................................................63
Article VIII. Information........................................................................63
Section 8.1. Quarterly Financial Statements............................................63
Section 8.2. Year-End Statements.......................................................63
Section 8.3. Compliance Certificate....................................................64
Section 8.4. Other Information.........................................................64
Article IX. Negative Covenants...................................................................66
Section 9.1. Financial Covenants.......................................................66
Section 9.2. Indebtedness..............................................................67
Section 9.3. Certain Permitted Investments.............................................67
Section 9.4. Investments Generally.....................................................68
Section 9.5. Liens; Negative Pledges; Other Matters....................................69
Section 9.6. Restricted Payments.......................................................70
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.............70
Section 9.8. Fiscal Year...............................................................71
Section 9.9. Modifications to Advisory Agreement and Other Material Contracts..........71
Section 9.10. Transactions with Affiliates.............................................71
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Section 9.11. ERISA Exemptions.........................................................71
Article X. Default...............................................................................72
Section 10.1. Events of Default........................................................72
Section 10.2. Remedies Upon Event of Default...........................................75
Section 10.3. Remedies Upon Default....................................................77
Section 10.4. Allocation of Proceeds...................................................77
Section 10.5. Collateral Account.......................................................77
Section 10.6. Performance by Agent.....................................................78
Section 10.7. Rights Cumulative........................................................78
Article XI. The Agent............................................................................79
Section 11.1. Authorization and Action.................................................79
Section 11.2. Agent's Reliance, Etc....................................................79
Section 11.3. Notice of Defaults.......................................................80
Section 11.4. First Union as Lender....................................................80
Section 11.5. Approvals of Lenders.....................................................81
Section 11.6. Lender Credit Decision, Etc..............................................81
Section 11.7. Indemnification of Agent.................................................82
Section 11.8. Successor Agent..........................................................82
Section 11.9. Titled Agents............................................................83
Article XII. Miscellaneous.......................................................................83
Section 12.1. Notices..................................................................83
Section 12.2. Expenses.................................................................84
Section 12.3. Setoff...................................................................85
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.........................85
Section 12.5. Successors and Assigns...................................................86
Section 12.6. Amendments...............................................................89
Section 12.7. Nonliability of Agent and Lenders........................................90
Section 12.8. Confidentiality..........................................................91
Section 12.9. Indemnification..........................................................91
Section 12.10. Termination; Survival...................................................93
Section 12.11. Severability of Provisions..............................................93
Section 12.12. GOVERNING LAW...........................................................93
Section 12.13. Counterparts............................................................93
Section 12.14. Obligations with Respect to Loan Parties................................94
Section 12.15. Limitation of Liability.................................................94
Section 12.16. Entire Agreement........................................................94
Section 12.17. Construction............................................................94
SECTION 12.18. LIABILITY OF TRUSTEES, ETC..............................................94
SCHEDULE 1.1(A) List of Loan Parties
SCHEDULE 1.1(B) Terms of Subordination
SCHEDULE 6.1.(b) Ownership Structure
SCHEDULE 6.1.(f) Title to Properties; Liens
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SCHEDULE 6.1.(g) Indebtedness and Guaranties
SCHEDULE 6.1.(h) Material Contracts
SCHEDULE 6.1.(i) Litigation
SCHEDULE 6.1.(k) Financial Statements
SCHEDULE 6.1.(y) List of Unencumbered Assets
SCHEDULE 9.4. Existing Investments
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Designation Agreement
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Notice of Swingline Borrowing
EXHIBIT G Form of Swingline Note
EXHIBIT H Form of Bid Rate Quote Request
EXHIBIT I Form of Bid Rate Quote
EXHIBIT J Form of Bid Rate Quote Acceptance
EXHIBIT K Form of Revolving Note
EXHIBIT L Form of Bid Rate Note
EXHIBIT M Form of Cancellation Request
EXHIBIT N-1 Form of Opinion of Counsel
EXHIBIT N-2 Form of Opinion of Special Counsel
EXHIBIT O Form of Compliance Certificate
EXHIBIT P Form of Guaranty
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THIS CREDIT AGREEMENT dated as of April 30, 2001 by and among HRPT
Properties Trust, a real estate investment trust organized under the laws of the
State of Maryland (the "Borrower"), each of the financial institutions initially
a signatory hereto together with their assignees pursuant to Section 12.5.(d),
First Union National Bank, as Agent, FIRST UNION SECURITIES, INC., as Lead
Arranger, FLEET NATIONAL BANK, as Co-Lead Arranger, WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Syndication Agent, and each of COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH, THE BANK OF NEW YORK and FLEET NATIONAL BANK, as Documentation
Agents.
WHEREAS, the Agent and the Lenders desire to make available to the
Borrower a revolving credit facility in the initial amount of $425,000,000,
which will include a $40,000,000 letter of credit subfacility and a $25,000,000
swingline subfacility, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, with respect to any period of time, EBITDA of
the Borrower and its Subsidiaries determined on a consolidated basis for such
period less Capital Expenditures Reserves for all Properties for such period.
"Adjusted Eurodollar Rate" means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest
Period by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America).
"Advisory Agreement" means that certain Advisory Agreement dated as of
January 1, 1998 by and between the Borrower and RMR.
"Affiliate" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or
indirectly owning or holding ten percent (10.0%) or more of any Equity Interest
in the Borrower; or (c) ten percent (10.0%) or more of whose voting stock or
other Equity Interest is directly or indirectly owned or held by the Borrower.
For purposes of this definition, "control" (including with correlative meanings,
the terms "controlling", "controlled by" and "under common control with") means
the possession directly or indirectly of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or by contract or otherwise. The Affiliates of a
Person shall include any officer or director of such Person.
"Agent" means First Union National Bank, as contractual representative
for the Lenders under the terms of this Agreement, and any of its successors.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means the percentage per annum determined, at any
time, based on the range into which the Borrower's Credit Rating then falls, in
accordance with the table set forth below. Any change in the Borrower's Credit
Rating which would cause it to move to a different Level in such table shall
effect a change in the Applicable Margin on the Business Day on which such
change occurs. During any period that the Borrower has received Credit Ratings
that are not equivalent, the Applicable Margin shall be determined by the lower
of such two Credit Ratings. During any period for which the Borrower has not
received a Credit Rating from a Rating Agency, then the Applicable Margin shall
be determined as Level 5. As of the Agreement Date, the Applicable Margin is
determined based on Level 3.
Borrower's Credit Rating Applicable Margin Applicable Margin
Level (S&P/Moody's (other)) for LIBOR Loans for Base Rate Loans
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1 A-/A3 (or equivalent) 0.65% 0.0%
2 BBB+/Baa1 (or equivalent) 0.70% 0.0%
3 BBB/Baa2 (or equivalent) 0.80% 0.0%
4 BBB-/Baa3 (or equivalent) 0.95% 0.15%
5 < BBB-/Baa3 (or equivalent) 1.40% 0.35%
"Asset Under Development" means, as of any date of determination, any
Property on which construction of new income-producing improvements has been
commenced and is continuing. If such construction consists of the construction
of tenant improvements, as opposed to expansion of such Property or any "ground
up" development, such Property shall not be considered to be an Asset Under
Development. In addition, to the extent any Property includes a
revenue-generating component (e.g. an existing building leased to a tenant) and
a building under development, such revenue-generating component shall not be
considered to be an Asset Under Development but such building under development
shall be considered to be an Asset Under Development.
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"Assignee" has the meaning given that term in Section 12.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit A.
"Base Rate" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Lender acting as the Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged by the Lender
acting as the Agent or any other Lender on any extension of credit to any
debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Bid Rate" has the meaning given that term in Section 2.2.(c)(ii)(C).
"Bid Rate Borrowing" has the meaning given that term in Section
2.2.(b).
"Bid Rate Loan" means a loan made by a Lender under Section 2.2.
"Bid Rate Notes" has the meaning given that term in Section 2.11.(b).
"Bid Rate Quote" means an offer in accordance with Section 2.2.(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
"Bid Rate Quote Request" has the meaning given that term in Section
2.2.(b).
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina or New York, New York are
authorized or required to close and (b) with reference to a LIBOR Loan, any such
day that is also a day on which dealings in Dollar deposits are carried out in
the London interbank market.
"Cancellation Request" has the meaning given that term in Section 2.13.
"Capital Expenditure Reserves" means, with respect to a Property and
for a given period, an amount equal to (a) the aggregate rentable square footage
of all completed space of such Property, times (b) $0.75, times (c) the number
of days in such period, divided by (d) 365.
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"Capitalized Lease Obligation" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation determined in accordance with GAAP.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, acting through a branch or agency, which bank
has capital and unimpaired surplus in excess of $500,000,000.00 and which bank
or its holding company has a short-term commercial paper rating of at least A-2
or the equivalent by S&P or at least P-2 or the equivalent by Moody's; (c)
reverse repurchase agreements with terms of not more than seven days from the
date acquired, for securities of the type described in clause (a) above and
entered into only with commercial banks having the qualifications described in
clause (b) above; (d) commercial paper issued by any Person incorporated under
the laws of the United States of America or any State thereof and rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof
by Moody's, in each case with maturities of not more than one year from the date
acquired; and (e) investments in money market funds registered under the
Investment Company Act of 1940, which have net assets of at least
$500,000,000.00 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.
"Collateral Account" means a special non-interest bearing deposit
account maintained by the Agent at the Principal Office and under its sole
dominion and control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the Agent)
or participate in (in the case of the Lenders) Letters of Credit pursuant to
Section 2.4.(a) and 2.4.(i), respectively, in an amount up to, but not exceeding
(but in the case of the Lender acting as the Agent excluding the aggregate
amount of participations in the Letters of Credit held by other Lenders), the
amount set forth for such Lender on its signature page hereto as such Lender's
"Commitment Amount" or as set forth in the applicable Assignment and Acceptance
Agreement, as the same may be reduced from time to time pursuant to Section
2.12. or as appropriate to reflect any assignments to or by such Lender effected
in accordance with Section 12.5.
"Commitment Percentage" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the
aggregate amount of the Commitments of all Lenders hereunder; provided, however,
that if at the time of determination the Commitments have terminated or been
reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"Compliance Certificate" has the meaning given that term in Section
8.3.
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"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.9.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.10.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Borrower.
"Debt Service" means, for any period, the sum of: (a) Interest Expense
of the Borrower and its Subsidiaries determined on a consolidated basis for such
period and (b) all regularly scheduled payments made with respect to
Indebtedness of the Borrower and its Subsidiaries during such period, other than
any balloon, bullet or similar principal payment which repays such Indebtedness
in full.
"Default" means any of the events specified in Section 10.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.11.
"Designated Lender" means a special purpose corporation which is
sponsored by a Lender, that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and that
issues (or the parent of which issues) commercial paper rated at least P-1 (or
the then equivalent grade) by Moody's or A-1 (or the then equivalent grade) by
S&P that, in either case, (a) is organized under the laws of the United States
of America or any state thereof, (b) shall have become a party to this Agreement
pursuant to Section 12.5.(e) and (c) is not otherwise a Lender.
"Designated Lender Note" means a Bid Rate Note of the Borrower
evidencing the obligation of the Borrower to repay Bid Rate Loans made by a
Designated Lender.
"Designating Lender" has the meaning given that term in Section
12.5.(e).
"Designation Agreement" means a Designation Agreement between a Lender
and a Designated Lender and accepted by the Agent, substantially in the form of
Exhibit B or such other form as may be agreed to by such Lender, such Designated
Lender and the Agent.
"Developable Property" means (a) any Property on which there are no
improvements or (b) any Property (or portion thereof) acquired by the Borrower
or any Subsidiary for the purpose of being developed.
"Dollars" or "$" means the lawful currency of the United States of
America.
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"EBITDA" means, with respect to a Person for a given period: (a) net
earnings (or loss) of such Person for such period determined on a consolidated
basis exclusive of the following (to the extent included in determination of
such net earnings (loss)): (i) depreciation and amortization expense; (ii)
Interest Expense; (iii) income tax expense; (iv) extraordinary or non-recurring
gains and losses; and (v) in the case of the Borrower and its Subsidiaries,
equity in the earnings (or loss) of SNH and HPT and other Unconsolidated
Affiliates; plus (b) in the case of the Borrower and its Subsidiaries cash
dividends (other than extraordinary cash dividends or distributions) received by
the Borrower or its Subsidiaries from SNH or HPT during such period; plus (c)
such Person's pro rata share of EBITDA of its Unconsolidated Affiliates. For
purposes of determining the EBITDA of the Borrower and its Subsidiaries, EBITDA
not attributable to operations or assets of the Borrower or its Subsidiaries
located in the United States of America shall be excluded. Straight line rent
leveling adjustments required under GAAP shall be disregarded in determinations
of EBITDA.
"Effective Date" means the later of: (a) the Agreement Date; and (b)
the date on which all of the conditions precedent set forth in Section 5.1.
shall have been fulfilled or waived in writing by the Requisite Lenders.
"Eligible Assignee" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, investment bank or
pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of $5,000,000,000; (iii) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $500,000,000; or (iv) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and having
total assets in excess of $10,000,000,000, provided that such bank is acting
through a branch or agency located in the United States of America. If such
Person is not currently a Lender, such Person's senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by Moody's, or
the equivalent or higher of either such rating by another Rating Agency
acceptable to the Agent. Notwithstanding the foregoing, during any period in
which an Event of Default shall have occurred and be continuing under any of
subsections (a), (b), (f) or (g) of Section 10.1., the term "Eligible Assignee"
shall mean any Person that is not an individual.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C.ss.7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.ss.1251 et
seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C.ss. 6901 et seq.; Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C.ss. 9601 et seq.; National
Environmental Policy Act, 42 U.S.C.ss. 4321 et seq.; regulations of the
Environmental Protection Agency and any applicable rule of common law and any
judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
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"Equity Interest" means, with respect to any Person, any share of
capital stock of (or other ownership or profit interests in) such Person, any
warrant, option or other right for the purchase or other acquisition from such
Person of any share of capital stock of (or other ownership or profit interests
in) such Person, any security (other than a security constituting Indebtedness)
convertible into or exchangeable for any share of capital stock of (or other
ownership or profit interests in) such Person or warrant, right or option for
the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such share, warrant, option,
right or other interest is authorized or otherwise existing on any date of
determination.
"Equity Issuance" means any issuance by a Person of any Equity Interest
and shall in any event include the issuance of any Equity Interest upon the
conversion or exchange of any security constituting Indebtedness that is
convertible or exchangeable, or is being converted or exchanged, for Equity
Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Event of Default" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excluded Subsidiary" means any Subsidiary (a) which has a legal
structure and capitalization intended to make such entity a single purpose,
"bankruptcy remote" entity; and (b) for which none of the Borrower, any
Subsidiary (other than another Excluded Subsidiary) or any other Loan Party has
Guaranteed any of the Indebtedness or Subordinated Debt of such Subsidiary or
has any direct obligation to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve any specified levels of
operating results, except for customary exceptions for fraud, misapplication of
funds, environmental indemnities, and other similar exceptions to recourse
liability.
"Existing Credit Agreement" means that certain Fourth Amended and
Restated Revolving Loan Agreement dated as of April 2, 1998 by and among the
Borrower, the financial institutions party thereto as "Lenders", Dresdner
Kleinwort Benson North America LLC, as Agent, Fleet National Bank, as
Administrative Agent, and certain Subsidiaries of the Borrower.
"Facility Fee" means the per annum percentage set forth in the table
below corresponding to the Level at which the "Applicable Margin" is determined
in accordance with the definition thereof:
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Level Facility Fee
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1 0.15%
2 0.20%
3 0.20%
4 0.20%
5 0.30%
As of the Agreement Date, the Facility Fee equals 0.20%.
"Fair Market Value" means, with respect to (a) a security listed on a
principal national securities exchange, the price of such security as reported
on such exchange by any widely recognized reporting method customarily relied
upon by financial institutions and (b) with respect to any other property, the
price which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) 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, 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 quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"First Union" means First Union National Bank, together with its
successors and assigns.
"Fitch" means Fitch, Inc. and its successors.
"Fixed Charges" means, for any period, the sum (without duplication) of
(a) Debt Service for such period and (b) Preferred Dividends for such period.
"Floating Rate Debt" means all Indebtedness of the Borrower and its
Subsidiaries which bears interest at fluctuating rates (and in any event shall
include all Loans and other Indebtedness of the Borrower under any of the Loan
Documents) and for which the Borrower or any such Subsidiary has not obtained
Interest Rate Agreements which effectively cause such variable rates to be
equivalent to fixed rates less than or equal to 10.0% per annum.
"Funds From Operations" means, for any period, net income of the
Borrower for such period determined on a consolidated basis, exclusive of the
following (to the extent included in the determination of such net income): (a)
depreciation and amortization; (b) gains and losses
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from extraordinary or non-recurring items; (c) gains and losses on sales of real
estate; (d) gains and losses on investments in marketable securities; (e)
provisions/benefits for income taxes for such period; and (f) Funds From
Operations attributable to any Investment held, directly or indirectly, by the
Borrower in HPT and SNH; provided, however, cash dividends in respect of such
Investments in HPT and SNH that have been actually received by the Borrower or
any Subsidiary during such period, shall not be excluded from Funds From
Operation by virtue of this clause (f).
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Guarantor" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include each Material Subsidiary (unless an
Excluded Subsidiary).
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property
or the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance (or
payment of damages in the event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of such obligation against
loss, (iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn down by
beneficiaries of letters of credit (including Letters of Credit), or (v) the
supplying of funds to or investing in a Person on account of all or any part of
such Person's obligation under a Guaranty of any obligation or indemnifying or
holding harmless, in any way, such Person against any part or all of such
obligation. As the context requires, "Guaranty" shall also mean the Guaranty to
which the Guarantors are parties substantially in the form of Exhibit P.
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"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"HPT" means Hospitality Properties Trust, together with its successors
and assigns.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed; (b) all obligations of
such Person, whether or not for money borrowed (i) represented by notes payable,
or drafts accepted, in each case representing extensions of credit, (ii)
evidenced by bonds, debentures, notes or similar instruments, or (iii)
constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for property or services rendered; (c) Capitalized Lease Obligations of
such Person; (d) all reimbursement obligations of such Person under any letters
of credit or acceptances (whether or not the same have been presented for
payment); (e) all obligations, contingent or otherwise, of such Person under any
synthetic lease, tax retention operating lease, off balance sheet loan or
similar off balance sheet financing arrangement if the transaction giving rise
to such obligation (i) is considered indebtedness for borrowed money for tax
purposes but is classified as an operating lease under GAAP and (ii) does not
(and is not required to pursuant to GAAP) appear as a liability on the balance
sheet of such Person; (f) all obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Mandatorily
Redeemable Stock issued by such Person or any other Person, valued at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; (g) all obligations of such Person in respect of any take-out
commitment or forward equity commitment (excluding, in the case of the Borrower
and its Subsidiaries, any such obligation that can be satisfied solely by the
issuance of Equity Interests (other than Mandatorily Redeemable Stock)); (h) all
Indebtedness of other Persons which such Person has Guaranteed or is otherwise
recourse to such Person; (i) all Indebtedness of another Person secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property or assets owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness or other payment obligation, valued, in the case of any
such Indebtedness as to which recourse for the payment thereof is expressly
limited to the property or assets on which such Lien is granted, at the lesser
of (x) the stated or determinable amount of the Indebtedness that is so secured
or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder) and
(y) the Fair Market Value of such property or assets; and (j) such Person's pro
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rata share of the Indebtedness of any Unconsolidated Affiliate of such Person.
In the case of the Borrower and its Subsidiaries, Subordinated Debt shall not be
considered Indebtedness.
"Intellectual Property" has the meaning given that term in Section
6.1.(t).
"Interest Expense" means, with respect to a Person for any period of
time, (a) the interest expense, whether paid, accrued or capitalized (without
deduction of consolidated interest income) of such Person for such period plus
(b) in the case of the Borrower, the Borrower's pro rata share of Interest
Expense of its Unconsolidated Affiliates.
"Interest Period" means:
(a) with respect to any LIBOR Loan, each period commencing on the date
such LIBOR Loan is made or the last day of the next preceding Interest Period
for such Loan and ending 7, 30 or 90 days thereafter, as the Borrower may select
in a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the
case may be, except that each Interest Period of 30 or 90 day's duration that
commences on the last Business Day of a calendar month shall end on the last
Business Day of the appropriate subsequent calendar month; and
(b) with respect to any Bid Rate Loan, the period commencing on the
date such Bid Rate Loan is made and ending on any Business Day not less than 7
nor more than 90 days thereafter, as the Borrower may select as provided in
Section 2.2.(b).
Notwithstanding the foregoing: (i) if any Interest Period would otherwise end
after the Termination Date, such Interest Period shall end on the Termination
Date; and (ii) each Interest Period that would otherwise end on a day which is
not a Business Day shall end on the next succeeding Business Day (or, if such
next succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day).
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
contractual agreement or arrangement entered into with a nationally recognized
financial institution then having an Investment Grade Rating for the purpose of
protecting against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, (x) with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, by means
of any of the following: (a) the purchase or other acquisition of any Equity
Interest in another Person, (b) a loan, advance or extension of credit to,
capital contribution to, Guaranty of Indebtedness of, or purchase or other
acquisition of any Indebtedness of, another Person, including any partnership or
joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute the business or a division or operating unit of
another Person and (y) with respect to any Property or other asset, the
acquisition thereof. Any commitment to make an Investment in any other Person,
as well as any option of another Person to require an Investment in such Person,
shall constitute an Investment.
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Except as expressly provided otherwise, for purposes of determining compliance
with any covenant contained in a Loan Document, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
"Investment Grade Rating" means a Credit Rating of BBB-/Baa3 (or
equivalent) from both Rating Agencies.
"L/C Commitment Amount" equals $40,000,000.
"Lender" means each financial institution from time to time party
hereto as a "Lender" or a "Designated Lender," together with its respective
successors and permitted assigns; provided, however, that the term "Lender"
shall exclude each Designated Lender when used in reference to any Loan other
than a Bid Rate Loan, the Commitments or terms relating to any Loan other than a
Bid Rate Loan and the Commitments and shall further exclude each Designated
Lender for all other purposes under the Loan Documents except that any
Designated Lender which funds a Bid Rate Loan shall, subject to Section
12.5.(e), have the rights (including the rights given to a Lender contained in
Sections 12.2. and 12.9.) and obligations of a Lender associated with holding
such Bid Rate Loan.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"Letter of Credit" has the meaning given that term in Section 2.4.(a).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"Letter of Credit Liabilities" means, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender acting as the Agent) shall be deemed
to hold a Letter of Credit Liability in an amount equal to its participation
interest in the related Letter of Credit under Section 2.4.(i), and the Lender
acting as the Agent shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders other than the Lender acting as
the Agent of their participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page
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3750 (or any successor page) as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such Interest
Period. If for any reason such rate is not available, the term "LIBOR" shall
mean, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on the
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on the Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates.
"LIBOR Loans" means Loans bearing interest at a rate based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to the payment of the general, unsecured
creditors of such Person; (c) the filing of any financing statement under the
Uniform Commercial Code or its equivalent in any jurisdiction, other than a
financing statement filed (i) in respect of a lease not constituting a
Capitalized Lease Obligation pursuant to Section 9-408 (or a successor
provision) of the Uniform Commercial Code as in effect in an applicable
jurisdiction or (ii) in connection with a sale or other disposition of accounts
or other assets not prohibited by this Agreement in a transaction not otherwise
constituting or giving rise to a Lien; and (d) any agreement by such Person to
grant, give or otherwise convey any of the foregoing.
"Loan" means a Revolving Loan, a Bid Rate Loan or a Swingline Loan.
"Loan Document" means this Agreement, each Note, each Letter of Credit
Document, the Guaranty and each other document or instrument now or hereafter
executed and delivered by a Loan Party in connection with, pursuant to or
relating to this Agreement.
"Loan Party" means each of the Borrower and each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
security to secure all or a portion of the Obligations. Schedule 1.1.(A) sets
forth the Loan Parties in addition to the Borrower as of the Agreement Date.
"Management Agreement" means that certain Master Management Agreement
dated as of December 31, 1997 by and between RMR and the Borrower and its
Subsidiaries.
"Mandatorily Redeemable Stock" means, with respect to any Person, any
Equity Interest of such Person which by the terms of such Equity Interest (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (a)
matures or is mandatorily redeemable, pursuant to a
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sinking fund obligation or otherwise (other than an Equity Interest which is
redeemable solely in exchange for common stock or other equivalent common Equity
Interests), (b) is convertible into or exchangeable or exercisable for
Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option
of the holder thereof, in whole or in part (other than an Equity Interest which
is redeemable solely in exchange for common stock or other equivalent common
Equity Interests), in each case on or prior to the date on which all Revolving
Loans are scheduled to be due and payable in full.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower or any other Loan Party to perform its obligations
under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders and the Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Borrower, any Subsidiary
or any other Loan Party is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could reasonably be
expected to have a Material Adverse Effect, and in any event shall include the
Advisory Agreement and the Management Agreement with respect to the Borrower.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"Material Subsidiary" means any Subsidiary to which 2.0% or more of
Total Asset Value is, directly or indirectly, attributable.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits or limits the creation or
assumption of any Lien on any assets of a Person or entitles another Person to
obtain or claim the benefit of a Lien on any assets of such Person; provided,
however, that an agreement that establishes a maximum ratio of unsecured debt to
unencumbered assets, or of secured debt to total assets, or that otherwise
conditions a Person's ability to encumber its assets upon the maintenance of one
or more specified ratios that limit such Person's ability to encumber its assets
but that do not generally prohibit the encumbrance of its assets, or the
encumbrance of specific assets, shall not constitute a Negative Pledge for
purposes of this Agreement.
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"Net Operating Income" means, with respect to a Property and for a
given period, the sum of the following (without duplication): (a) rents
(adjusted for straight-lining of rents) and other revenues received in the
ordinary course from the leasing or operating of such Property (including
proceeds of rent loss insurance but excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent) minus (b) all expenses paid or accrued by the Borrower or
a Subsidiary related to the ownership, operation or maintenance of such
Property, including but not limited to taxes, assessments and other similar
charges, insurance, utilities, payroll costs, maintenance, repair and
landscaping expenses, on-site marketing expenses and property management fees
equal to the greater of (i) actual property management fees or (ii) three
percent (3.0%) of the total gross revenues for such Property for such period,
but in any event excluding general and administrative expenses of the Borrower
and its Subsidiaries, minus (c) Capital Expenditures Reserves with respect to
such Property for such period.
"Net Proceeds" means with respect to any Equity Issuance by a Person,
the aggregate amount of all cash and the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"Net Worth" means, with respect to any Person, such Person's total
shareholder's equity (including capital stock, additional paid-in capital and
retained earnings, after deducting treasury stock) which would appear as such on
a balance sheet of such Person prepared in accordance with GAAP.
"Nonrecourse Indebtedness" means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment (except
for customary exceptions for fraud, misapplication of funds, environmental
indemnities, and other similar exceptions to recourse liability) is
contractually limited to specific assets of such Person encumbered by a Lien
securing such Indebtedness.
"Note" means a Revolving Note, a Bid Rate Note or a Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit C to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit D to be
delivered to the Agent pursuant to Section 2.9. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.10. evidencing the Borrower's
request for the Conversion of a Loan from one Type to another Type.
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"Notice of Swingline Borrowing" means a notice in the form of Exhibit F
to be delivered to the Agent pursuant to Section 2.3. evidencing the Borrower's
request for a borrowing of Swingline Loans.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower and the other Loan Parties owing to the Agent, the Swingline Lender or
any Lender of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents, including, without limitation, the
Fees and indemnification obligations, whether direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated or unliquidated,
and whether or not evidenced by any promissory note.
"Participant" has the meaning given that term in Section 12.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 7.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar Applicable Laws; (c)
Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or impair the
use thereof in the business of such Person; and (d) Liens in existence as of the
Agreement Date and set forth in Part II of Schedule 6.1.(f).
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
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"Preferred Dividends" means, for any given period and without
duplication, all Restricted Payments accrued or paid (and in the case of
Restricted Payments paid, which were not accrued during a prior period) during
such period on Preferred Stock issued by the Borrower or a Subsidiary. Preferred
Dividends shall not include dividends or distributions paid or payable (a)
solely in Equity Interests (other than Mandatorily Redeemable Stock) payable to
holders of such class of Equity Interests; (b) to the Borrower or a Subsidiary;
or (c) constituting or resulting in the redemption of Preferred Stock, other
than scheduled redemptions not constituting balloon, bullet or similar
redemptions in full.
"Preferred Stock" means, with respect to any Person, Equity Interests
in such Person which are entitled to preference or priority over any other
Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
"Prime Rate" means the rate of interest per annum announced publicly by
the Lender acting as the Agent as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest offered by the
Lender acting as the Agent or any other Lender.
"Principal Office" means the office of the Agent located at One First
Union Center, Charlotte, North Carolina, or such other office of the Agent as
the Agent may designate from time to time.
"Property" means any parcel of real property owned or leased (in whole
or in part) or operated by the Borrower or any Subsidiary and which is located
in a state of the United States of America or the District of Columbia.
"Property EBITDA" means, with respect to a Property and for a given
period, the sum of the following (without duplication): (a) rents (adjusted for
straight-lining of rents) and other revenues received in the ordinary course
from the leasing or operating of such Property (including proceeds of rent loss
insurance but excluding pre-paid rents and revenues and security deposits except
to the extent applied in satisfaction of tenants' obligations for rent) minus
(b) all expenses paid or accrued by the Borrower or a Subsidiary related to the
ownership, operation or maintenance of such Property, including but not limited
to taxes, assessments and other similar charges, insurance, utilities, payroll
costs, maintenance, repair and landscaping expenses, on-site marketing expenses
and property management fees equal to the greater of (i) actual property
management fees or (ii) three percent (3.0%) of the total gross revenues for
such Property for such period, but in any event excluding general and
administrative expenses of the Borrower and its Subsidiaries.
"Rating Agency" means S&P and Moody's. If either such corporation
ceases to act as a securities rating agency or ceases to provide ratings with
respect to the senior long-term unsecured debt obligations of the Borrower, then
the Borrower may designate as a replacement Rating Agency Fitch or any other
nationally recognized securities rating agency acceptable to the Agent.
"Register" has the meaning given that term in Section 12.5.(f).
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"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"RMR" means REIT Management & Research, Inc., together with its
successors and permitted assigns.
"Requisite Lenders" means, as of any date, Lenders having at least 66
2/3% of the aggregate amount of the Commitments (not held by Defaulting Lenders
who are not entitled to vote), or, if the Commitments have been terminated or
reduced to zero, Lenders holding at least 66 2/3% of the principal amount of the
Loans and Letter of Credit Liabilities (not held by Defaulting Lenders who are
not entitled to vote).
"Responsible Officer" means (a) with respect to the Borrower, the
Borrower's President or Treasurer or any Managing Trustee of the Borrower and
(b) with respect to any other Loan Party, such Loan Party's chief executive
officer or chief financial officer.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interest of the Borrower or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable solely
in Equity Interests of identical class to the holders of that class; (b) any
redemption, conversion, exchange, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Equity
Interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire any Equity
Interests of the Borrower or any of its Subsidiaries now or hereafter
outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.11.(a).
"Secured Indebtedness" means, with respect to a Person as of any given
date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date and that
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is secured in any manner by any Lien, and in the case of the Borrower, shall
include (without duplication) the Borrower's pro rata share of the Secured
Indebtedness of its Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"SNH" means Senior Housing Properties Trust, together with its
successors and assigns.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and
matured liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such Person has
capital not unreasonably small to carry on its business and all business in
which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc. and its successors.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Subordinated Debt" means Indebtedness of the Borrower or any of its
Subsidiaries that is subordinated in right of payment and otherwise to the Loans
and the other Obligations on terms and conditions approved of by the Titled
Agents and the Requisite Lenders. When the Borrower is seeking approval of
subordination terms and conditions pursuant to the immediately preceding
sentence, it shall deliver to the Agent a reasonably detailed description of
such terms and conditions which must contain a conspicuous legend to the effect
that a Lender will be deemed to have approved such terms if it does not respond
in writing to the contrary within the prescribed time. Promptly upon receipt of
any such notice, the Agent will forward it to each of the Lenders. Unless a
Lender shall give written notice to the Agent that it specifically objects to
such terms and conditions within 10 Business Days of receipt of such description
from the Agent, such Lender shall be deemed to have approved of such terms and
conditions.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person, and shall include all Persons the accounts
of which consolidated with those of such Person pursuant to GAAP.
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"Supermajority Lenders" means, as of any date, Lenders having at least
75% of the aggregate amount of the Commitments (not held by Defaulting Lenders
who are not entitled to vote), or, if the Commitments have been terminated or
reduced to zero, Lenders holding at least 75% of the principal amount of the
Loans and Letter of Credit Liabilities (not held by Defaulting Lenders who are
not entitled to vote).
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding,
$25,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means First Union National Bank, together with its
respective successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to the
Borrower pursuant to Section 2.3.(a).
"Swingline Note" means the promissory note of the Borrower payable to
the order of the Swingline Lender in a principal amount equal to the amount of
the Swingline Commitment as originally in effect and otherwise duly completed,
substantially in the form of Exhibit G.
"Tangible Net Worth" means, as of any given time: (a) the book value
(exclusive of depreciation) of all real estate assets of the Borrower and its
Subsidiaries that constitute Properties at such time; plus (b) the book value of
other assets (excluding any real estate assets) of the Borrower and its
Subsidiaries; less (c) the book value of the Borrower's Investment in HPT and
SNH; less (d) all amounts appearing on the assets side of a consolidated balance
sheet of the Borrower for assets separately classified as intangible assets
under GAAP; less (e) all Indebtedness of the Borrower and its Subsidiaries
determined on a consolidated basis; less (f) all other liabilities of the
Borrower and its Subsidiaries determined on a consolidated basis.
"Taxes" has the meaning given that term in Section 3.12.
"Termination Date" means April 30, 2005, or such earlier date to which
the Termination Date may be shortened pursuant to Section 2.13.
"Titled Agents" means the Lead Arranger, the Co-Lead Arranger, the
Syndication Agent and the Documentation Agents, and their respective successors
and permitted assigns.
"Total Asset Value" means the sum of the following (without
duplication) of the Borrower and its Subsidiaries for the fiscal quarter most
recently ended: (a)(i)(x) Property EBITDA determined on a consolidated basis for
such fiscal quarter and which is attributable to the Properties of the Borrower
and its Subsidiaries (excluding Property EBITDA attributable to Properties
either acquired or disposed of during such fiscal quarter) minus (y) Capital
Expenditure Reserves for such Properties for such fiscal quarter times (ii) 4
and divided by (iii) 9.25%; (b) the purchase price paid for any Property
acquired during such fiscal quarter (less any amounts paid as a purchase price
adjustment, held in escrow, retained as a contingency reserve, or other similar
arrangements); (c) the value of the Borrower's equity Investment in each of HPT
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and SNH, such value determined at the lower cost or Fair Market Value; (d) all
cash, cash equivalents and accounts receivable that are not (i) owing in excess
of 90 days (or one year in the case of any Governmental Authority of the United
States of America (but not political subdivisions thereof)) as of the end of
such fiscal period or (ii) being contested in writing by the obligor in respect
thereof (in which case only such portion being contested shall be excluded from
Total Asset Value); (e) prepaid taxes and operating expenses as of the end of
such fiscal period; (f) the book value of all Developable Land; (g) the book
value of all other tangible assets (excluding land or other real property) as of
the end of such fiscal period; (h) the book value of all Unencumbered Mortgage
Notes; and (i) the Borrower's pro rata share of the preceding items (other than
those referred to in clause (c)) of any Unconsolidated Affiliate of the
Borrower.
"Total Indebtedness" means, as of a given date, all liabilities of the
Borrower and its Subsidiaries which would, in conformity with GAAP, be properly
classified as a liability on a consolidated balance sheet of the Borrower and
its Subsidiaries as of such date, and in any event shall include (without
duplication): (a) all Indebtedness of the Borrower and its Subsidiaries and (b)
the Borrower's pro rata share of Indebtedness of its Unconsolidated Affiliates.
"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"Unconsolidated Affiliate" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person. For purposes of this definition, Unconsolidated Affiliate shall not
include SNH and HPT.
"Unencumbered Asset" means a Property which satisfies all of the
following requirements: (a) such Property is (i) owned in fee simple solely by
the Borrower or a Guarantor or (ii) leased solely by the Borrower or a Guarantor
pursuant to a ground lease having terms and conditions reasonably acceptable to
the Agent; (b) is not an Asset Under Development and is in service; (c) is
improved only with office buildings or other improvements of a type similar to
improvements located on the Properties as of the Agreement Date; (d) neither
such Property, nor any interest of the Borrower or such Guarantor therein, is
subject to any Lien (other than Permitted Liens of the types described in
clauses (a) through (c) of the definition thereof or Liens in favor of the
Borrower or a Guarantor) or to any Negative Pledge; (e) if such Property is
owned by a Subsidiary, (i) none of the Borrower's direct or indirect ownership
interest in such Subsidiary is subject to any Lien (other than Permitted Liens
of the types described in clauses (a) through (c) of the definition thereof or
Liens in favor of the Borrower or a Guarantor) or to any Negative Pledge and
(ii) the Borrower directly, or indirectly through a Subsidiary, has the right to
sell, transfer or otherwise dispose of such Property without the need to obtain
the consent of any Person; and (f) such Property is free of all structural
defects or major architectural deficiencies, title defects, environmental
conditions or other adverse matters which, individually or collectively,
materially impair the value of such Property.
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"Unencumbered Asset Value" means, at any given time, the sum of: (a)(i)
Net Operating Income from all Unencumbered Assets for the fiscal quarter most
recently ending times (ii) 4 divided by (iii) 9.25%; and (b) the book value of
all Unencumbered Mortgage Notes of the Borrower and its Subsidiaries. To the
extent that the book value of Unencumbered Mortgage Notes would account for more
than 10.0% of Unencumbered Asset Value, such excess shall be excluded. To the
extent that Properties leased by the Borrower or a Guarantor pursuant to a
ground lease would, in the aggregate, account for more than 5.0% of Unencumbered
Asset Value, such excess shall be excluded. Pro forma Net Operating Income from
any Unencumbered Asset acquired during such fiscal quarter shall be entitled to
include such Property for the entire quarter in the foregoing calculation. If an
Unencumbered Asset is not owned as of the last day of a quarter then the Net
Operating Income from such asset shall be excluded from the foregoing
calculation.
"Unencumbered Mortgage Note" means a promissory note satisfying all of
the following requirements: (a) such promissory note is owned solely by the
Borrower or a Guarantor; (b) such promissory note is secured by a Lien on real
property improved only with office buildings or other improvements of a type
similar to improvements located on the Properties as of the Agreement Date; (c)
neither such promissory note, nor any interest of the Borrower or such Guarantor
therein, is subject to any Lien (other than Permitted Liens of the types
described in clauses (a) through (c) of the definition thereof or Liens in favor
of the Borrower or a Guarantor) or to any Negative Pledge; (d) if such
promissory note is owned by a Subsidiary, (i) none of the Borrower's direct or
indirect ownership interest in such Subsidiary is subject to any Lien (other
than Permitted Liens of the types described in clauses (a) through (c) of the
definition thereof or Liens in favor of the Borrower or a Guarantor) or to any
Negative Pledge and (ii) the Borrower directly, or indirectly through a
Subsidiary, has the right to sell, transfer or otherwise dispose of such
promissory note without the need to obtain the consent of any Person; and (d)
such real property and related improvements are not subject to any other Lien
(other than Permitted Liens of the types described in clauses (a) through (c) of
the definition thereof or Liens in favor of the Borrower or a Guarantor).
"Unencumbered Net Operating Income" means the sum of (a) Net Operating
Income from all Unencumbered Assets for the fiscal quarter most recently ending
and (b) income attributable to Unencumbered Mortgage Notes for such fiscal
quarter, other than income attributable to an Unencumbered Mortgage Note where
(i) any required principal or interest payment due under such Unencumbered
Mortgage Note is more than 60 days past due or (ii) the maker of such
Unencumbered Mortgage Note is the subject of a case, proceeding or condition of
any of the types described in Sections 10.1.(f) or 10.1.(g). To the extent that
income attributable to Unencumbered Mortgage Notes would account for more than
10.0% of Unencumbered Net Operating Income, such excess shall be excluded. In
addition, notwithstanding the foregoing, Unencumbered Net Operating Income
otherwise attributable to any Investment in SNH or HPT shall be excluded from
Unencumbered Net Operating Income.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of
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ERISA (excluding any accrued but unpaid contributions), all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Debt Service" means, for a given period, Debt Service for
such period, with respect to Unsecured Indebtedness of the Borrower and its
Subsidiaries.
"Unsecured Indebtedness" means, with respect to a Person as of any
given date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date that is not Secured Indebtedness (excluding
Indebtedness associated with Unconsolidated Affiliates) and in the case of the
Borrower shall include (without duplication) Indebtedness that does not
constitute Secured Indebtedness.
"Wholly Owned Subsidiary" means any Subsidiary of a Person in respect
of which all of the equity securities or other ownership interests (other than,
in the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries
of such Person.
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. references in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified as of the date of this Agreement and from time to
time thereafter to the extent not prohibited hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Borrower or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to Charlotte, North Carolina
time.
ARTICLE II. CREDIT FACILITY
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly
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agrees to make Revolving Loans to the Borrower in an aggregate principal amount
at any one time outstanding up to, but not exceeding, the amount of such
Lender's Commitment. Subject to the terms and conditions of this Agreement,
during the period from the Effective Date to but excluding the Termination Date,
the Borrower may borrow, repay and reborrow Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrower shall give the Agent
notice pursuant to a Notice of Borrowing or telephonic notice of each borrowing
of Revolving Loans. Each Notice of Borrowing shall be delivered to the Agent
before 11:00 a.m. (a) in the case of LIBOR Loans, on the date three Business
Days prior to the proposed date of such borrowing and (b) in the case of Base
Rate Loans, on the date one Business Day prior to the proposed date of such
borrowing. Any such telephonic notice shall include all information to be
specified in a written Notice of Borrowing and shall be promptly confirmed in
writing by the Borrower pursuant to a Notice of Borrowing sent to the Agent by
telecopy on the same day of the giving of such telephonic notice. The Agent will
transmit by telecopy the Notice of Borrowing (or the information contained in
such Notice of Borrowing) to each Lender promptly upon receipt by the Agent.
Each Notice of Borrowing or telephonic notice of each borrowing shall be
irrevocable once given and binding on the Borrower.
(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m.
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent at the
Principal Office, in immediately available funds, the proceeds of the Revolving
Loan to be made by such Lender. With respect to Revolving Loans to be made after
the Effective Date, unless the Agent shall have been notified by any Lender
prior to the specified date of borrowing that such Lender does not intend to
make available to the Agent the Revolving Loan to be made by such Lender on such
date, the Agent may assume that such Lender will make the proceeds of such
Revolving Loan available to the Agent on the date of the requested borrowing as
set forth in the Notice of Borrowing and the Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrower
the amount of such Revolving Loan to be provided by such Lender. Subject to
satisfaction of the applicable conditions set forth in Article V. for such
borrowing, the Agent will make the proceeds of such borrowing available to the
Borrower no later than 2:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing.
Section 2.2. Bid Rate Loans.
(a) Bid Rate Loans. So long as the Borrower maintains an Investment
Grade Rating, in addition to borrowings of Revolving Loans, at any time during
the period from the Effective Date to but excluding the Termination Date the
Borrower may, as set forth in this Section, request the Lenders to make offers
to make Bid Rate Loans to the Borrower in Dollars. The Lenders may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Requests for Bid Rate Loans. When the Borrower wishes to request
from the Lenders offers to make Bid Rate Loans, it shall give the Agent notice
(a "Bid Rate Quote Request") so as to be received no later than 10:00 a.m. on
the Business Day next preceding the date of borrowing proposed therein. The
Agent shall deliver to each Lender a copy of each Bid
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Rate Quote Request promptly upon receipt thereof by the Agent. The Borrower may
request offers to make Bid Rate Loans for up to three (3) different Interest
Periods in each Bid Rate Quote Request; provided that the request for each
separate Interest Period shall be deemed to be a separate Bid Rate Quote Request
for a separate borrowing (a "Bid Rate Borrowing"). Each Bid Rate Quote Request
shall be substantially in the form of Exhibit H and shall specify as to each Bid
Rate Borrowing:
(i) the proposed date of such Bid Rate Borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Bid Rate Borrowing, which
(x) shall be in the minimum amount of $10,000,000 and integral
multiples of $500,000 and (y) shall not cause any of the limits
specified in Section 2.15. to be violated; and
(iii) the duration of the Interest Period applicable thereto.
Except as otherwise provided in this subsection (b), no Bid Rate Quote Request
shall be given within five Business Days (or such other number of days as the
Borrower and the Agent, with the consent of the Requisite Lenders, may agree) of
the giving of any other Bid Rate Quote Request.
(c) Bid Rate Quotes.
(i) Each Lender may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid Rate
Quote Request; provided that, if the Borrower's request under Section
2.2.(b) specified more than one Interest Period, such Lender may make a
single submission containing one or more Bid Rate Quotes for each such
Interest Period. Each Bid Rate Quote must be submitted to the Agent not
later than 11:00 a.m. on the proposed date of borrowing; provided that
the Lender then acting as Agent may submit a Bid Rate Quote only if it
notifies the Borrower of the terms of the offer contained therein not
later than 10:45 a.m. on the proposed date of such borrowing. Subject
to Articles V. and X., any Bid Rate Quote so made shall be irrevocable
except with the consent of the Agent given at the request of the
Borrower. Any Bid Rate Loan may be funded by a Lender's Designated
Lender (if any) as provided in Section 12.5.(e), however such Lender
shall not be required to specify in its Bid Rate Quote whether such Bid
Rate Loan will be funded by such Designated Lender.
(ii) Each Bid Rate Quote shall be substantially in the form of
Exhibit I and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Bid Rate Loan for
which each such offer is being made; provided that the
aggregate principal amount of all Bid Rate Loans for which a
Lender submits Bid Rate Quotes (x) may be greater or less than
the Commitment of such Lender but (y) shall not exceed the
principal amount of
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the Bid Rate Borrowing for a particular Interest Period for
which offers were requested;
(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/10,000th of 1%) offered for
each such Bid Rate Loan (the "Bid Rate"); and
(D) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the Borrower, no Bid Rate
Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Bid Rate Quote Request and, in particular, no Bid Rate Quote
may be conditioned upon acceptance by the Borrower of all (or some
specified minimum) of the principal amount of the Bid Rate Loan for
which such Bid Rate Quote is being made.
(d) Notification by Agent. The Agent shall, as promptly as practicable
after the Bid Rate Quotes are submitted (but in any event not later than 11:30
a.m. on the proposed date of borrowing), notify the Borrower of the terms (i) of
any Bid Rate Quote submitted by a Lender that is in accordance with Section
2.2.(c) and (ii) of any Bid Rate Quote that amends, modifies or is otherwise
inconsistent with a previous Bid Rate Quote submitted by such Lender with
respect to the same Bid Rate Quote Request. Any such subsequent Bid Rate Quote
shall be disregarded by the Agent unless such subsequent Bid Rate Quote is
submitted solely to correct a manifest error in such former Bid Rate Quote. The
Agent's notice to the Borrower shall specify (A) the aggregate principal amount
of the Bid Rate Borrowing for which offers have been received and (B) the
principal amounts and Bid Rates so offered by each Lender (identifying the
Lender that made each Bid Rate Quote).
(e) Acceptance by Borrower.
(i) Not later than 12:00 noon on the proposed date of
borrowing, the Borrower shall notify the Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section
2.2.(d) which notice shall be in the form of Exhibit J. In the case of
acceptance, such notice shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The failure of the
Borrower to give such notice by such time shall constitute
nonacceptance. The Agent shall promptly notify each affected Lender.
The Borrower may accept any Bid Rate Quote in whole or in part;
provided that:
(A) the aggregate principal amount of each Bid Rate
Borrowing may not exceed the applicable amount set forth in
the related Bid Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate
Borrowing shall comply with the provisions of Section 3.5. but
shall not cause the limits specified in Section 2.15. to be
violated;
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(C) acceptance of offers may be made only in
ascending order of Bid Rates in each case beginning with the
lowest rate so offered;
(D) the Borrower may not accept any Bid Rate Quote
that fails to comply with Section 2.2.(c) or otherwise fails
to comply with the requirements of this Agreement); and
(E) any acceptance in part shall be in a minimum
amount of $1,000,000 and integral multiples of $500,000 in
excess thereof.
(ii) If offers are made by two or more Lenders with the same
Bid Rates for a greater aggregate principal amount than the amount in
respect of which offers are permitted to be accepted for the related
Interest Period, the principal amount of Bid Rate Loans in respect of
which such offers are accepted shall be allocated by the Agent among
such Lenders in proportion to the aggregate principal amount of such
offers. Determinations by the Agent of the amounts of Bid Rate Loans
shall be conclusive in the absence of manifest error.
(f) Obligation to Make Bid Rate Loans. The Agent shall promptly notify
each Lender whose Bid Rate Quote has been accepted and the amount and rate
thereof. A Lender who is notified that it has been selected to make a Bid Rate
Loan may designate its Designated Lender (if any) to fund such Bid Rate Loan on
its behalf, as described in Section 12.5.(e). Any Designated Lender which funds
a Bid Rate Loan shall on and after the time of such funding become the obligee
under such Bid Rate Loan and be entitled to receive payment thereof when due. No
Lender shall be relieved of its obligation to fund a Bid Rate Loan, and no
Designated Lender shall assume such obligation, prior to the time the applicable
Bid Rate Loan is funded. Any Lender whose offer to make any Bid Rate Loan has
been accepted shall, not later than 1:30 p.m. on the date specified for the
making of such Loan, make the amount of such Loan available to the Agent at its
Principal Office in immediately available funds, for the account of the
Borrower. The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower no later than
2:00 p.m. on such date by depositing the same, in immediately available funds,
in an account of the Borrower designated by the Borrower.
(g) No Effect on Commitment. Except for the purpose and to the extent
expressly stated in Section 2.12., the amount of any Bid Rate Loan made by any
Lender shall not constitute a utilization of such Lender's Commitment.
Section 2.3. Swingline Loans.
(a) Swing Line Loans. Subject to the terms and conditions hereof,
during the period from the Effective Date to but excluding the Termination Date,
the Swingline Lender agrees to make Swingline Loans to the Borrower in an
aggregate principal amount at any one time outstanding up to, but not exceeding,
the amount of the Swingline Commitment. If at any time the aggregate principal
amount of the Swingline Loans outstanding at such time exceeds the Swingline
Commitment in effect at such time, the Borrower shall immediately pay the Agent
for the account of the Swingline Lender the amount of such excess. Subject to
the terms and
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conditions of this Agreement, the Borrower may borrow, repay and reborrow
Swingline Loans hereunder.
(b) Procedure for Borrowing Swingline Loans. The Borrower shall give
the Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing or telephonic notice of each borrowing of a Swingline Loan. Each
Notice of Swingline Borrowing shall be delivered to the Swingline Lender no
later than 3:00 p.m. on the proposed date of such borrowing. Any such telephonic
notice shall include all information to be specified in a written Notice of
Swingline Borrowing and shall be promptly confirmed in writing by the Borrower
pursuant to a Notice of Swingline Borrowing sent to the Swingline Lender by
telecopy on the same day of the giving of such telephonic notice. On the date of
the requested Swingline Loan and subject to satisfaction of the applicable
conditions set forth in Article V. for such borrowing, the Swingline Lender will
make the proceeds of such Swingline Loan available to the Borrower in Dollars,
in immediately available funds, at the account specified by the Borrower in the
Notice of Swingline Borrowing not later than 11:00 a.m. on such date if the
Swingline Lender received such Notice of Swingline Borrowing by 9:00 a.m. on
such date, and otherwise not later than 4:00 p.m. on such date.
(c) Interest. Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate plus the Applicable Margin for Base Rate Loans (or at
such other rate or rates as the Borrower and the Swingline Lender may agree from
time to time in writing). Interest payable on Swingline Loans is solely for the
account of the Swingline Lender. All accrued and unpaid interest on Swingline
Loans shall be payable on the dates and in the manner provided in Section 2.5.
with respect to interest on Base Rate Loans (except as the Swingline Lender and
the Borrower may otherwise agree in writing in connection with any particular
Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $1,000,000 and integral multiples of $500,000 or such other
minimum amounts agreed to by the Swingline Lender and the Borrower. Any
voluntary prepayment of a Swingline Loan must be in integral multiples of
$100,000 or the aggregate principal amount of all outstanding Swingline Loans
(or such other minimum amounts upon which the Swingline Lender and the Borrower
may agree) and in connection with any such prepayment, the Borrower must give
the Swingline Lender prior written notice thereof no later than 10:00 a.m. on
the date of such prepayment. The Swingline Loans shall, in addition to this
Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay each Swingline Loan within one Business Day of demand therefor
by the Swingline Lender and in any event, within 5 Business Days after the date
such Swingline Loan was made. Notwithstanding the foregoing, the Borrower shall
repay the entire outstanding principal amount of, and all accrued but unpaid
interest on, the Swingline Loans on the Termination Date (or such earlier date
as the Swingline Lender and the Borrower may agree in writing). In lieu of
demanding repayment of any outstanding Swingline Loan from the Borrower in
respect of which the Agent has not either (x) received a Notice of Borrowing
indicating that such Swingline Loan is to be repaid with the proceeds thereof or
(y) received notice from the Borrower that it intends to repay such Swingline
Loan on a specified date and, in the case of this clause (y) only, such
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Swingline Loan is not repaid by 11:30 a.m. on such date, the Swingline Lender
may, on behalf of the Borrower (which hereby irrevocably directs the Swingline
Lender to act on its behalf), request a borrowing of Revolving Loans (which
shall be Base Rate Loans) from the Lenders in an amount equal to the principal
balance of such Swingline Loan. The limitations of Section 3.5.(a) shall not
apply to any borrowing of Base Rate Loans made pursuant to this subsection. The
Swingline Lender shall give notice to the Agent of any such borrowing of Base
Rate Loans not later than 12:00 noon on the proposed date of such borrowing. No
later than 2:00 p.m. on such date, each Lender will make available to the Agent
at the Principal Office for the account of Swingline Lender, in immediately
available funds, the proceeds of the Base Rate Loan to be made by such Lender.
The Agent shall pay the proceeds of such Base Rate Loans to the Swingline
Lender, which shall apply such proceeds to repay such Swingline Loan. If the
Lenders are prohibited from making Loans required to be made under this
subsection for any reason, including without limitation, the occurrence of any
of the Events of Default described in Sections 10.1.(f) or 10.1.(g), each Lender
shall purchase from the Swingline Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Lender's Commitment
Percentage of such Swingline Loan, by directly purchasing a participation in
such Swingline Loan in such amount (regardless of whether the conditions
precedent thereto set forth in Section 5.2. are then satisfied, whether or not
the Borrower has submitted a Notice of Borrowing and whether or not the
Commitments are then in effect, any Event of Default exists or all the Loans
have been accelerated) and paying the proceeds thereof to the Agent for the
account of the Swingline Lender in Dollars and in immediately available funds.
If such amount is not in fact made available to the Swingline Lender by any
Lender, the Swingline Lender shall be entitled to recover such amount on demand
from such Lender, together with accrued interest thereon for each day from the
date of demand thereof, at the Federal Funds Rate. If such Lender does not pay
such amount forthwith upon the Swingline Lender's demand therefor, and until
such time as such Lender makes the required payment, the Swingline Lender shall
be deemed to continue to have outstanding Swingline Loans in the amount of such
unpaid participation obligation for all purposes of the Loan Documents (other
than those provisions requiring the other Lenders to purchase a participation
therein). Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other amounts due
to it hereunder, to the Swingline Lender to fund Swingline Loans in the amount
of the participation in Swingline Loans that such Lender failed to purchase
pursuant to this Section until such amount has been purchased (as a result of
such assignment or otherwise). A Lender's obligation to purchase such a
participation in a Swingline Loan shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without limitation,
(i) any claim of setoff, counterclaim, recoupment, defense or other right which
such Lender or any other Person may have or claim against the Agent, the
Swingline Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without limitation, any
of the Defaults or Events of Default described in Sections 10.1.(f) or 10.1.(g))
or the termination of any Lender's Commitment, (iii) the existence (or alleged
existence) of an event or condition which has had or could have a Material
Adverse Effect, (iv) any breach of any Loan Document by the Agent, any Lender or
the Borrower or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
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Section 2.4. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrower during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date one or more letters of
credit (each a "Letter of Credit") up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed the L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to approval by the Agent and the
Borrower. Notwithstanding the foregoing, in no event may the expiration date of
any Letter of Credit extend beyond the earlier of (i) the date one year from its
date of issuance or (ii) the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give
the Agent written notice (or telephonic notice promptly confirmed in writing) at
least 5 Business Days prior to the requested date of issuance of a Letter of
Credit, such notice to describe in reasonable detail the proposed terms of such
Letter of Credit and the nature of the transactions or obligations proposed to
be supported by such Letter of Credit, and in any event shall set forth with
respect to such Letter of Credit (i) the proposed initial Stated Amount, (ii)
the beneficiary or beneficiaries, and (iii) the proposed expiration date. The
Borrower shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Agent. Provided the
Borrower has given the notice prescribed by the first sentence of this
subsection and subject to Section 2.15. and the other terms and conditions of
this Agreement, including the satisfaction of any applicable conditions
precedent set forth in Article V., the Agent shall issue the requested Letter of
Credit on the requested date of issuance for the benefit of the stipulated
beneficiary. Upon the written request of the Borrower, the Agent shall deliver
to the Borrower a copy of each issued Letter of Credit within a reasonable time
after the date of issuance thereof. To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such Loan
Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand; provided, however,
the Agent's failure to give, or delay in giving, such notice shall not discharge
the Borrower in any respect from the applicable Reimbursement Obligation. The
Borrower hereby unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit on
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind (other than notice as provided in this subsection). Upon
receipt by the Agent of any payment in respect of any Reimbursement Obligation,
the Agent shall promptly pay to each Lender that has acquired a participation
therein under the second sentence of Section 2.4.(i) such Lender's Commitment
Percentage of such payment.
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(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment. If the Borrower fails to so advise the Agent, or if the Borrower fails
to reimburse the Agent for a demand for payment under a Letter of Credit by the
date of such payment, then (i) if the applicable conditions contained in Article
V. would permit the making of Revolving Loans, the Borrower shall be deemed to
have requested a borrowing of Revolving Loans (which shall be Base Rate Loans)
in an amount equal to the unpaid Reimbursement Obligation and the Agent shall
give each Lender prompt notice of the amount of the Revolving Loan to be made
available to the Agent not later than 1:00 p.m. and (ii) if such conditions
would not permit the making of Revolving Loans, the provisions of subsection (j)
of this Section shall apply. The limitations of Section 3.5.(a) shall not apply
to any borrowing of Base Rate Loans under this subsection.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to the product of
(i) such Lender's Commitment Percentage and (ii) the sum of (A) the Stated
Amount of such Letter of Credit plus (B) any related Reimbursement Obligations
then outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligation. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit, or of
the proceeds thereof; (vii) the misapplication by the beneficiary of any Letter
of Credit, or the proceeds of any drawing under any Letter of Credit; or (viii)
any consequences arising from causes beyond the control of the Agent or the
Lenders. None of the above shall affect, impair or prevent the vesting of any of
the Agent's rights or powers hereunder. Any action taken or omitted to be taken
by the Agent under or in
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connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create against the Agent or
any Lender any liability to the Borrower or any Lender. In this connection, the
obligation of the Borrower to reimburse the Agent for any drawing made under any
Letter of Credit shall be absolute, unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Letter of
Credit Document or any term or provisions therein; (B) any amendment or waiver
of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against the Agent, any Lender, any beneficiary
of a Letter of Credit or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or in the Letter of Credit
Documents or any unrelated transaction; (D) any breach of contract or dispute
between the Borrower, the Agent, any Lender or any other Person; (E) any demand,
statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein or made in connection therewith being untrue or inaccurate in any
respect whatsoever; (F) any non-application or misapplication by the beneficiary
of a Letter of Credit of the proceeds of any drawing under such Letter of
Credit; (G) payment by the Agent under any Letter of Credit against presentation
of a draft or certificate which does not strictly comply with the terms of such
Letter of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a
legal or equitable defense to or discharge of the Borrower's Reimbursement
Obligations. Notwithstanding anything to the contrary contained in this Section
or Section 12.9., but not in limitation of the Borrower's unconditional
obligation to reimburse the Agent for any drawing made under a Letter of Credit
as provided in this Section, the Borrower shall have no obligation to indemnify
the Agent or any Lender in respect of any liability incurred by the Agent
arising solely out of the gross negligence or willful misconduct of the Agent in
respect of a Letter of Credit as actually and finally determined by a court of
competent jurisdiction. Except as otherwise provided in this Section, nothing in
this Section shall affect any rights the Borrower may have with respect to the
Agent's gross negligence or willful misconduct with respect to any Letter of
Credit.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite
Lenders shall have consented thereto. In connection with any such amendment,
supplement or other modification, the Borrower shall pay the Fees, if any,
payable under the last sentence of Section 3.6.(b).
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Commitment Percentage of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall
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absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and shall be unconditionally obligated to the Agent to pay and
discharge when due, such Lender's Commitment Percentage of the Agent's liability
under such Letter of Credit. In addition, upon the making of each payment by a
Lender to the Agent in respect of any Letter of Credit pursuant to the
immediately following subsection (j), such Lender shall, automatically and
without any further action on the part of the Agent or such Lender, acquire (i)
a participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Agent by the Borrower in respect of such Letter of
Credit and (ii) a participation in a percentage equal to such Lender's
Commitment Percentage in any interest or other amounts payable by the Borrower
in respect of such Reimbursement Obligation (other than the Fees payable to the
Agent pursuant to the second and last sentences of Section 3.6.(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Agent on demand in immediately available funds in Dollars the amount of
such Lender's Commitment Percentage of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.4.(d). Each such Lender's obligation to make such payments
to the Agent under this subsection, and the Agent's right to receive the same,
shall be absolute, irrevocable and unconditional and shall not be affected in
any way by any circumstance whatsoever, including without limitation, (i) the
failure of any other Lender to make its payment under this subsection, (ii) the
financial condition of the Borrower or any other Loan Party, (iii) the existence
of any Default or Event of Default, including any Event of Default described in
Section 10.1.(f) or 10.1.(g) or (iv) the termination of the Commitments. Each
such payment to the Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.
(k) Information to Lenders. Upon the request of any Lender from time to
time, the Agent shall deliver to such Lender information reasonably requested by
such Lender with respect to each Letter of Credit then outstanding. Other than
as set forth in this subsection, the Agent shall have no duty to notify the
Lenders regarding the issuance or other matters regarding Letters of Credit
issued hereunder. The failure of the Agent to perform its requirements under
this subsection shall not relieve any Lender from its obligations under Section
2.4.(j).
Section 2.5. Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time) plus the Applicable
Margin;
(ii) during such periods as such Loan is a LIBOR Loan, at the
Adjusted Eurodollar Rate for such Loan for the Interest Period therefor
plus the Applicable Margin; and
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(iii) if such Loan is a Bid Rate Loan, at the Bid Rate for
such Loan for the Interest Period therefor quoted by the Lender making
such Loan in accordance with Section 2.2.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender, on all Reimbursement Obligations and on any other amount payable by
the Borrower hereunder or under the Notes held by such Lender to or for the
account of such Lender (including without limitation, accrued but unpaid
interest to the extent permitted under Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly in arrears on the first day of each
calendar month, (ii) in the case of a LIBOR Loan or a Bid Rate Loan, on the last
day of each Interest Period therefor, and (iii) in the case of any Loan, upon
the payment, prepayment or Continuation thereof or the Conversion of such Loan
to a Loan of another Type (but only on the principal amount so paid, prepaid,
Continued or Converted). Interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrower. All determinations by the Agent of an interest rate hereunder shall be
conclusive and binding on the Lenders and the Borrower for all purposes, absent
manifest error.
(c) Ratings Change. If the Applicable Margin shall change as a result
of a change in the Borrower's Credit Rating and then within a 90-period change
back to the Applicable Margin in effect at the beginning of such period as a
result of another change in such Credit Rating, and (i) if the initial change in
the Applicable Margin were an increase, then the Borrower will receive as a
credit against its Obligations any incremental interest expense with respect to
the Loans and the Facility Fee for the period during which the increase existed
and (ii) if the initial change in the Applicable Margin were a decrease, then
the Borrower shall promptly pay to the Agent for the benefit of the Lenders
additional interest with respect to the Loans and additional Facility Fees for
the period during which the increase existed determined as if such decrease had
not occurred.
Section 2.6. Number of Interest Periods.
There may be no more than 6 different Interest Periods for either LIBOR
Loans or Bid Rate Loans, and no more than 9 different Interest Periods for LIBOR
Loans and Bid Rate Loans collectively, outstanding at the same time (for which
purpose Interest Periods described in different lettered clauses of the
definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous).
Section 2.7. Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay the entire outstanding
principal amount of, and all accrued but unpaid interest on, the Revolving Loans
on the Termination Date.
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(b) Bid Rate Loans. The Borrower shall repay the entire outstanding
principal amount of, and all accrued but unpaid interest on, each Bid Rate Loan
on the last day of the Interest Period of such Bid Rate Loan.
Section 2.8. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any Loan
(other than a Bid Rate Loan) at any time without premium or penalty. Bid Rate
Loans may not be prepaid at the option of the Borrower. The Borrower shall give
the Agent at least one Business Day's prior written notice of the prepayment of
any Revolving Loan.
(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate amount of all Letter of
Credit Liabilities and the aggregate principal amount of all outstanding Bid
Rate Loans and the aggregate principal amount of all outstanding Swingline
Loans, exceeds the aggregate amount of the Commitments in effect at such time,
the Borrower shall immediately pay to the Agent for the accounts of the Lenders
the amount of such excess. Such payment shall be applied to pay all amounts of
principal outstanding on the Loans and any Reimbursement Obligations pro rata in
accordance with Section 3.2. and if any Letters of Credit are outstanding at
such time the remainder, if any, shall be deposited into the Collateral Account
for application to any Reimbursement Obligations. If the Borrower is required to
pay any outstanding LIBOR Loans or Bid Rate Loans by reason of this Section
prior to the end of the applicable Interest Period therefor, the Borrower shall
pay all amounts due under Section 4.4.
Section 2.9. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period
selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower giving to the Agent a Notice of Continuation not later than
11:00 a.m. on the third Business Day prior to the date of any such Continuation.
Such notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (a) the proposed date of such Continuation, (b) the
LIBOR Loans and portions thereof subject to such Continuation and (c) the
duration of the selected Interest Period, all of which shall be specified in
such manner as is necessary to comply with all limitations on Loans outstanding
hereunder. Each Notice of Continuation shall be irrevocable by and binding on
the Borrower once given. Promptly after receipt of a Notice of Continuation, the
Agent shall notify each Lender by telecopy, or other similar form of
transmission, of the proposed Continuation. If the Borrower shall fail to select
in a timely manner a new Interest Period for any LIBOR Loan in accordance with
this Section, or if a Default or Event of Default shall have occurred and be
continuing, such Loan will automatically, on the last day of the current
Interest Period therefor, Convert into a Base Rate Loan notwithstanding the
first sentence of Section 2.10. or the Borrower's failure to comply with any of
the terms of such Section.
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Section 2.10. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Agent, Convert all or a portion of a Loan of one
Type into a Loan of another Type. Any Conversion of a LIBOR Loan into a Base
Rate Loan shall be made on, and only on, the last day of an Interest Period for
such LIBOR Loan and, upon Conversion of a Base Rate Loan into a LIBOR Loan, the
Borrower shall pay accrued interest to the date of Conversion on the principal
amount so Converted. Each such Notice of Conversion shall be given not later
than 11:00 a.m. on the Business Day prior to the date of any proposed Conversion
into Base Rate Loans and on the third Business Day prior to the date of any
proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice of
Conversion, the Agent shall notify each Lender by telecopy, or other similar
form of transmission, of the proposed Conversion. Subject to the restrictions
specified above, each Notice of Conversion shall be by telephone (confirmed
immediately in writing) or telecopy in the form of a Notice of Conversion
specifying (a) the requested date of such Conversion, (b) the Type of Loan to be
Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of
Loan such Loan is to be Converted into and (e) if such Conversion is into a
LIBOR Loan, the requested duration of the Interest Period of such Loan. Each
Notice of Conversion shall be irrevocable by and binding on the Borrower once
given.
Section 2.11. Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit K (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Bid Rate Notes. The Bid Rate Loans made by any Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit L (each a "Bid Rate Note"),
payable to the order of such Lender and otherwise duly completed.
(c) Records. The date, amount, interest rate, Type and duration of
Interest Periods (if applicable) of each Loan made by each Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and such entries shall be binding on the
Borrower absent manifest error.
(d) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the
Borrower of (i) written notice from a Lender that a Note of such Lender has been
lost, stolen, destroyed or mutilated, and (ii) (A) in the case of loss, theft or
destruction, an unsecured agreement of indemnity from such Lender in form
reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon
surrender and cancellation of such Note, the Borrower shall at its own expense
execute and deliver to such Lender a new Note dated the date of such lost,
stolen, destroyed or mutilated Note.
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Section 2.12. Voluntary Reductions of the Commitment.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of Letter of Credit Liabilities and
the aggregate principal amount of all outstanding Swingline Loans and Bid Rate
Loans) at any time and from time to time without penalty or premium upon not
less than 5 Business Days prior written notice to the Agent of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of any such reduction and shall be irrevocable once given and
effective only upon receipt by the Agent. The Agent will promptly transmit such
notice to each Lender. The Commitments, once terminated or reduced may not be
increased or reinstated. Any reduction in the aggregate amount of the
Commitments shall result in a proportionate reduction (rounded to the next
lowest integral multiple of multiple of $100,000) in the Swingline Commitment
and the L/C Commitment Amount.
Section 2.13. Earlier Termination Date.
The Borrower may request that the Agent and the Lenders shorten the
current Termination Date by one (1) year by executing and delivering to the
Agent no later than January 30, 2004, a written request substantially in the
form of Exhibit M (a "Cancellation Request"). Once given, a Cancellation Request
shall be irrevocable by, and binding on, the Borrower. The Agent shall forward
to each Lender a copy of such Cancellation Request delivered to the Agent
promptly after receipt thereof. If the Borrower fails to deliver a Cancellation
Request to the Agent by such date, then the Termination Date shall remain
unchanged.
Section 2.14. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Agent an amount
of money equal to the Stated Amount of such Letter(s) of Credit for deposit into
the Collateral Account. If a drawing pursuant to any such Letter of Credit
occurs on or prior to the expiration date of such Letter of Credit, the Borrower
authorizes the Agent to use the monies deposited in the Collateral Account to
make payment to the beneficiary with respect to such drawing or the payee with
respect to such presentment. If no drawing occurs on or prior to the expiration
date of such Letter of Credit, the Agent shall withdraw the monies deposited in
the Collateral Account with respect to such outstanding Letter of Credit on or
before the date 15 Business Days after the expiration date of such Letter of
Credit and apply such funds to the Obligations, if any, then due and payable in
the order prescribed by Section 10.4.
Section 2.15. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may:
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(a) The aggregate principal amount of all outstanding Revolving Loans,
together with the aggregate principal amount of all outstanding Bid Rate Loans
and the aggregate principal amount of all outstanding Swingline Loans and the
aggregate amount of all Letter of Credit Liabilities, exceed the aggregate
amount of the Commitments at such time; or
(b) The aggregate principal amount of all outstanding Bid Rate Loans
exceed the lesser of (i) $200,000,000 or (ii) 50% of the aggregate amount of the
Commitments at such time.
Section 2.16. Increase of Commitments.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments (provided that the aggregate amount of increases in
the Commitments pursuant to this Section shall not exceed $200,000,000) by
providing written notice to the Agent, which notice shall be irrevocable once
given. Each such increase in the Commitments must be an aggregate minimum amount
of $50,000,000 and integral multiples of $10,000,000 in excess thereof. The
Agent shall promptly notify each Lender of any such request. Each existing
Lender shall have the right to increase its Commitment by an amount so that such
Lender's Commitment Percentage shall not be decreased as a result of such
requested increase in the Commitments. Each Lender shall notify the Agent within
10 Business Days after receipt of the Agent's notice whether such Lender wishes
to increase the amount of its Commitment. If a Lender fails to deliver any such
notice to the Agent within such time period, then such Lender shall be deemed to
have declined to increase its Commitment. No Lender shall be required to
increase its Commitment and any new Lender(s) becoming a party to this Agreement
in connection with any such requested increase must be an Eligible Assignee. In
the event a new Lender or Lenders become a party to this Agreement, or if any
existing Lender agrees to increase its Commitment, such Lender shall on the date
it becomes a Lender hereunder (or increases its Commitment, in the case of an
existing Lender) (and as a condition thereto) purchase from the other Lenders
its Commitment Percentage (as determined after giving effect to the increase of
Commitments) of any outstanding Revolving Loans, by making available to the
Agent for the account of such other Lenders at the Principal Office, in same day
funds, an amount equal to the sum of (A) the portion of the outstanding
principal amount of such Revolving Loans to be purchased by such Lender plus (B)
the aggregate amount of payments previously made by the other Lenders under
Section 2.4.(j) which have not been repaid plus (C) interest accrued and unpaid
to and as of such date on such portion of the outstanding principal amount of
such Revolving Loans. The Borrower shall pay to the Lenders amounts payable, if
any, to such Lenders under Section 4.4. as a result of the prepayment of any
such Revolving Loans. No increase of the Commitments may be effected under this
Section if either (x) a Default or Event of Default shall be in existence on the
effective date of such increase or (y) any representation or warranty made or
deemed made by the Borrower or any other Loan Party in any Loan Document to
which any such Loan Party is a party is not (or would not be) true or correct on
the effective date of such increase (except for representations or warranties
which expressly relate solely to an earlier date). In connection with any
increase in the aggregate amount of the Commitments pursuant to this subsection,
(a) any Lender becoming a party hereto shall execute such documents and
agreements as the Agent may reasonably request and (b) the Borrower shall make
appropriate arrangements so that each new Lender, and any existing Lender
increasing its Commitment, receives a new or replacement Note, as appropriate,
in the amount of such Lender's Commitment within 2 Business Days of the
effectiveness of the applicable increase in the aggregate amount of Commitments.
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ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent at its
Principal Office, not later than 2:00 p.m. on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Subject to
Sections 3.2. and 3.3., the Agent, or any Lender for whose account any such
payment is made, may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time from any special or general deposit
account of the Borrower with the Agent or such Lender, as the case may be (with
notice to the Borrower, the other Lenders and the Agent). The Borrower shall, at
the time of making each payment under this Agreement or any Note, specify to the
Agent the amounts payable by the Borrower hereunder to which such payment is to
be applied. Each payment received by the Agent for the account of a Lender under
this Agreement or any Note shall be paid to such Lender at the applicable
Lending Office of such Lender no later than 5:00 p.m. on the date of receipt. If
the Agent fails to pay such amount to a Lender as provided in the previous
sentence, the Agent shall pay interest on such amount until paid at a rate per
annum equal to the Federal Funds Rate from time to time in effect. If the due
date of any payment under this Agreement or any other Loan Document would
otherwise fall on a day which is not a Business Day such date shall be extended
to the next succeeding Business Day and interest shall be payable for the period
of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Section 3.6.(a), the first sentence of Section 3.6.(b) and
Section 3.6.(c) shall be made for the account of the Lenders, and each
termination or reduction of the amount of the Commitments under Section 2.12.
shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of Revolving Loans by the Borrower shall be made for the
account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Revolving Loans held by them, provided that if
immediately prior to giving effect to any such payment in respect of any
Revolving Loans the outstanding principal amount of the Revolving Loans shall
not be held by the Lenders pro rata in accordance with their respective
Commitments in effect at the time such Loans were made, then such payment shall
be applied to the Revolving Loans in such manner as shall result, as nearly as
is practicable, in the outstanding principal amount of the Revolving Loans being
held by the Lenders pro rata in accordance with their respective Commitments;
(c) each payment of interest on Revolving Loans by the Borrower shall be made
for the account of the Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders; (d) the
making, Conversion and Continuation of Revolving Loans of a particular Type
(other than Conversions provided for by Section 4.6.) shall be made
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pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of making of Loans) or their respective Loans (in the
case of Conversions and Continuations of Loans) and the then current Interest
Period for each Lender's portion of each Loan of such Type shall be coterminous;
(e) the Lenders' participation in, and payment obligations in respect of,
Letters of Credit under Section 2.4., shall be pro rata in accordance with their
respective Commitments; (f) the Lenders' participation in, and payment
obligations in respect of, Swingline Loans under Section 2.3., shall be in
accordance with their respective Commitments; and (g) each mandatory prepayment
of principal of Bid Rate Loans by the Borrower pursuant to Section 2.8.(b) shall
be made for account of the Lenders then owed Bid Rate Loans pro rata in
accordance with the respective unpaid principal amounts of the Bid Rate Loans
then owing to each such Lender. All payments of principal, interest, fees and
other amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired a
participating interest in any such Swingline Loan pursuant to Section 2.3.(e)).
Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrower or a Loan Party through
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the terms
of this Agreement and such payment should be distributed to the Lenders pro rata
in accordance with Section 3.2. or Section 10.4., as applicable, such Lender
shall promptly purchase from the other Lenders participations in (or, if and to
the extent specified by such Lender, direct interests in) the Loans made by the
other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or Section
10.4. To such end, all the Lenders shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored. The Borrower agrees that any Lender
so purchasing a participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
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Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Each borrowing of Base Rate Loans shall
be in an aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess thereof. Each borrowing and each Conversion of LIBOR Loans
shall be in an aggregate minimum amount of $2,000,000 and integral multiples of
$1,000,000 in excess of that amount. Each Bid Rate Loan shall be in a minimum
amount of $2,000,000 and integral multiples of $1,000,000 in excess thereof.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess thereof (or, if less, the aggregate principal amount of Revolving
Loans then outstanding).
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.12. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $5,000,000 in excess thereof.
(d) Letters of Credit. The initial Stated Amount of each Letter of
Credit shall be at least $500,000.
Section 3.6. Fees.
(a) Facility Fees. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee equal to the average daily amount of the
Commitment of such Lender (whether or not utilized) times the Facility Fee for
the period from and including the Agreement Date to but excluding the date such
Commitment is terminated or reduced to zero or the Termination Date, such fee to
be paid in arrears on (i) the last Business Day of March, June, September and
December in each year, (ii) the date of each reduction in the Commitments (but
only on the amount of the reduction) and (iii) on the Termination Date.
(b) Letter of Credit Fees. The Borrower agrees to pay to the Agent for
the account of each Lender a letter of credit fee at a rate per annum equal to
the Applicable Margin for LIBOR Loans times the daily average Stated Amount of
each Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (x) to and including the date such Letter of Credit
expires or is terminated or (y) to but excluding the date such Letter of Credit
is drawn in full. In addition, the Borrower shall pay to the Agent for its own
account and not the account of any Lender, a fronting fee in respect of each
Letter of Credit at the rate equal to one-eighth of one percent (0.125%) per
annum on the daily average Stated Amount of such Letter of Credit for the period
from and including the date of issuance of such Letter of Credit (A) to and
including the date such Letter of Credit expires or is terminated or (B) to but
excluding the date such Letter of Credit is drawn in full. The fees provided for
in the immediately preceding two sentences shall be nonrefundable and payable in
arrears (i) monthly on the first day of each calendar month, (ii) on the
Termination Date, (iii) on the date the Commitments are terminated or reduced to
zero and (iv) thereafter from time to time on demand of the Agent. The Borrower
shall pay directly to the Agent from time to time on demand all commissions,
charges, costs and expenses in the amounts customarily charged by the Agent from
time to time in like circumstances with
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respect to the issuance of each Letter of Credit, drawings, amendments and other
transactions relating thereto.
(c) Maturity Fee. If the Termination Date is not shortened in
accordance with Section 2.13., the Borrower agrees to pay to the Agent for the
account of each Lender a fee equal to one-quarter of one percent (0.25%) of the
amount of such Lender's Commitment (whether or not utilized). Such fee shall be
due and payable in full on January 30, 2004.
(d) Administrative and Other Fees. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing from
time to time.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan, any Fees or any other Obligations due hereunder shall be computed on
the basis of a year of 360 days and the actual number of days elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest specifically described in Section 2.5.(a)(i)
through (iii) and in Section 2.3.(c). Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees,
facility fees, closing fees, letter of credit fees, underwriting fees, default
charges, late charges, funding or "breakage" charges, increased cost charges,
attorneys' fees and reimbursement for costs and expenses paid by the Agent or
any Lender to third parties or for damages incurred by the Agent or any Lender,
are charges made to compensate the Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to be
performed or incurred, by the Agent and the Lenders in connection with this
Agreement and shall under no circumstances be deemed to be charges for the use
of money. All charges other than charges for the use of money shall be fully
earned and nonrefundable when due.
Section 3.10. Statements of Account.
The Agent will account to the Borrower monthly with a statement of
Loans, Letters of Credit, accrued interest and Fees, charges and payments made
pursuant to this Agreement and
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the other Loan Documents, and such account rendered by the Agent shall be deemed
conclusive upon Borrower absent manifest error. The failure of the Agent to
deliver such a statement of accounts shall not relieve or discharge the Borrower
from any of its obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of two Business Days after notice from
the Agent, then, in addition to the rights and remedies that may be available to
the Agent or the Borrower under this Agreement or Applicable Law, such
Defaulting Lender's right to participate in the administration of the Loans,
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Agent or to be taken into account in the calculation of the Requisite
Lenders, shall be suspended during the pendency of such failure or refusal. If a
Lender is a Defaulting Lender because it has failed to make timely payment to
the Agent of any amount required to be paid to the Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which the payment was due until the date on which the payment
is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Agent in respect of a
Defaulting Lender's Loans shall not be paid to such Defaulting Lender and shall
be held uninvested by the Agent and either applied against the purchase price of
such Loans under the following subsection (b) or paid to such Defaulting Lender
upon the Defaulting Lender's curing of its default.
(b) Purchase or Cancellation of Defaulting Lender's Commitment. Any
Lender who is not a Defaulting Lender shall have the right, but not the
obligation, in its sole discretion, to acquire all of a Defaulting Lender's
Commitment. Any Lender desiring to exercise such right shall give written notice
thereof to the Agent and the Borrower no sooner than 2 Business Days and not
later than 5 Business Days after such Defaulting Lender became a Defaulting
Lender. If more than one Lender exercises such right, each such Lender shall
have the right to acquire an amount of such Defaulting Lender's Commitment in
proportion to the Commitments of the other Lenders exercising such right. If
after such 5th Business Day, the Lenders have not elected to purchase all of the
Commitment of such Defaulting Lender, then the Borrower may, by giving written
notice thereof to the Agent, such Defaulting Lender and the other Lenders,
either (i) demand that such Defaulting Lender assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.5.(d) for the purchase price provided for below or (ii) terminate the
Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no
longer be a party hereto or have any rights or obligations hereunder or under
any of the other Loan Documents. No party hereto shall have any obligation
whatsoever to initiate any such replacement or to assist in finding an Eligible
Assignee. Upon any such purchase or
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assignment, the Defaulting Lender's interest in the Loans and its rights
hereunder (but not its liability in respect thereof or under the Loan Documents
or this Agreement to the extent the same relate to the period prior to the
effective date of the purchase) shall terminate on the date of purchase, and the
Defaulting Lender shall promptly execute all documents reasonably requested to
surrender and transfer such interest to the purchaser or assignee thereof,
including an appropriate Assignment and Acceptance Agreement and,
notwithstanding Section 12.5.(d), shall pay to the Agent an assignment fee in
the amount of $7,000. The purchase price for the Commitment of a Defaulting
Lender shall be equal to the amount of the principal balance of the Loans
outstanding and owed by the Borrower to the Defaulting Lender. Prior to payment
of such purchase price to a Defaulting Lender, the Agent shall apply against
such purchase price any amounts retained by the Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Lender
shall be entitled to receive amounts owed to it by the Borrower under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Agent from or on behalf of
the Borrower. There shall be no recourse against any Lender or the Agent for the
payment of such sums except to the extent of the receipt of payments from any
other party or in respect of the Loans.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits, (iv)
any taxes arising after the Agreement Date solely as a result of or attributable
to a Lender changing its designated Lending Office after the date such Lender
becomes a party hereto, and (v) any taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges to the extent imposed as a
result of the failure of the Agent or a Lender, as applicable, to provide and
keep current (to the extent legally able) any certificates, documents or other
evidence required to qualify for an exemption from, or reduced rate of, any such
taxes fees, duties, levies, imposts, charges, deductions, withholdings or other
charges or required by the immediately following subsection (c) to be furnished
by the Agent or such Lender, as applicable (such non-excluded items being
collectively called "Taxes"). If any withholding or deduction from any payment
to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
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(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction
been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the Agent,
for its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such Lender
or participant establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax or (ii) not
subject to United States Federal withholding tax under the Internal Revenue Code
because such payment is either effectively connected with the conduct by such
Lender or participant of a trade or business in the United States or totally
exempt from United States Federal withholding tax by reason of the application
of the provisions of a treaty to which the United States is a party or such
Lender is otherwise wholly exempt. In addition, any such Lender or participant
shall deliver to the Borrower and the Agent further copies of any such
certificate, document or other evidence on or before the date that any such
certificate, document or other evidence expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it, in each case establishing that payments to it
hereunder and under the Notes are (i) not subject to United States Federal
backup withholding tax or (ii) not subject to United States Federal withholding
tax under the Internal Revenue Code because such payment is either effectively
connected with the conduct by such Lender or participant of a trade or business
in the United States or totally exempt from United States Federal withholding
tax by reason of the application of the provisions of a treaty to which the
United States is a party or such Lender or participant, as applicable, is
otherwise wholly exempt, unless an event (including, without limitation, any
change in Applicable Law) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such certificates,
documents and other evidence wholly inapplicable or which would prevent such
Lender or participant, as applicable, from duly completing and delivering any
such certificates, documents or other evidence form with respect to it, and such
Lender or participant, as applicable, so advises the Borrower and the Agent in
writing.
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ARTICLE IV. YIELD PROTECTION, ETC.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for
the account of a Lender from time to time such amounts as such Lender may
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it determines are attributable to its making or maintaining of
any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans or such obligation or
the maintenance by such Lender of capital in respect of its Loans or its
Commitment (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to such Lender under
this Agreement or any of the other Loan Documents in respect of any of such
Loans or its Commitment (other than taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges which are excluded from the
definition of Taxes pursuant to the first sentence of Section 3.12.(a)); or (ii)
imposes or modifies any reserve, special deposit or similar requirements (other
than Regulation D of the Board of Governors of the Federal Reserve System or
other reserve requirement to the extent utilized in the determination of the
Adjusted Eurodollar Rate for such Loan) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Lender, or
any commitment of such Lender (including, without limitation, the Commitments of
such Lender hereunder); or (iii) has or would have the effect of reducing the
rate of return on capital of such Lender to a level below that which such Lender
could have achieved but for such Regulatory Change (taking into consideration
such Lender's policies with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 4.6.
shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
the obligations of the Borrower under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any
risk-based capital guideline or other requirement heretofore or hereafter issued
by any Governmental Authority there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of
Credit and the result shall be to increase the cost to the Agent of issuing (or
any Lender of purchasing participations in) or maintaining its obligation
hereunder to issue (or purchase participations in) any Letter of Credit
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or reduce any amount receivable by the Agent or any Lender hereunder in respect
of any Letter of Credit, then, upon demand by the Agent or such Lender, the
Borrower shall pay promptly, and in any event within 3 Business Days of demand,
to the Agent for its account or the account of such Lender, as applicable, from
time to time as specified by the Agent or a Lender, such additional amounts as
shall be sufficient to compensate the Agent or such Lender for such increased
costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
Agent and each Lender agrees to notify the Borrower of any event occurring after
the Agreement Date entitling the Agent or such Lender to compensation under any
of the preceding subsections of this Section as promptly as practicable;
provided, however, the failure of the Agent or any Lender to give such notice
shall not release the Borrower from any of its obligations hereunder; provided,
however, that notwithstanding the foregoing provisions of this Section, the
Agent or a Lender, as the case may be, shall not be entitled to compensation for
any such amount relating to any period ending more than six months prior to the
date that the Agent or such Lender, as applicable, first notifies the Borrower
in writing thereof or for any amounts resulting from a change by any Lender of
its Lending Office (other than changes required by Applicable Law). The Agent
and or such Lender agrees to furnish to the Borrower a certificate setting forth
the basis and amount of each request by the Agent or such Lender for
compensation under this Section. Absent manifest error, determinations by the
Agent or any Lender of the effect of any Regulatory Change shall be conclusive,
provided that such determinations are made on a reasonable basis and in good
faith.
Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Adjusted Eurodollar Rate for such Interest Period, or
(b) the Agent reasonably determines (which determination shall
be conclusive) that the Adjusted Eurodollar Rate will not adequately
and fairly reflect the cost to the Lenders of making or maintaining
LIBOR Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender
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shall promptly notify the Borrower thereof (with a copy to the Agent) and such
Lender's obligation to make or Continue, or to Convert Loans of any other Type
into, LIBOR Loans shall be suspended until such time as such Lender may again
make and maintain LIBOR Loans (in which case the provisions of Section 4.6.
shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Agent for the account of each Lender,
upon the request of such Lender through the Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender) to compensate it
for any loss, cost or expense that such Lender determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan or Bid Rate Loan, or Conversion of a LIBOR Loan, made
by such Lender for any reason (including, without limitation,
acceleration) on a date other than the last day of the Interest Period
for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article V. to be satisfied) to borrow a LIBOR
Loan or Bid Rate Loan from such Lender on the date for such borrowing,
or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR
Loan on the requested date of such Conversion or Continuation.
Upon the Borrower's request, any Lender requesting compensation under this
Section shall provide the Borrower with a statement setting forth the basis for
requesting such compensation and the method for determining the amount thereof.
Absent manifest error, determinations by any Lender in any such statement shall
be conclusive, provided that such determinations are made on a reasonable basis
and in good faith.
Section 4.5. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.12. or
4.1., and the Requisite Lenders are not also doing the same, or (b) the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or
4.3. but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, then, so long as there does not then exist any Default or
Event of Default, the Borrower may either (i) demand that such Lender (the
"Affected Lender"), and upon such demand the Affected Lender shall promptly,
assign its Commitments to an Eligible Assignee subject to and in accordance with
the provisions of Section 12.5.(d) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon and accrued but unpaid fees owing to the Affected
Lender, or (ii) pay to the Affected Lender the aggregate principal balance of
Loans then owing to the Affected Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to the Affected Lender, whereupon the
Affected Lender shall no longer be a party hereto or have any rights or
obligations hereunder or under any of the other Loan Documents. Each of the
Agent and the Affected Lender shall reasonably cooperate in effectuating the
replacement of such Affected Lender under this Section, but at no time shall the
Agent, such Affected Lender
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nor any other Lender be obligated in any way whatsoever to initiate any such
replacement or to assist in finding an Eligible Assignee. The exercise by the
Borrower of its rights under this Section shall be at the Borrower's sole cost
and expenses and at no cost or expense to the Agent, the Affected Lender or any
of the other Lenders. The terms of this Section shall not in any way limit the
Borrower's obligation to pay to any Affected Lender compensation owing to such
Affected Lender pursuant to Section 3.12. or 4.1.
Section 4.6. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b), 4.2. or 4.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 4.1.(b) or 4.3., on such earlier date as such Lender may
specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 4.1. or 4.3. that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1. or 4.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
Section 4.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
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Section 4.8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
ARTICLE V. CONDITIONS PRECEDENT
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of a Loan or the issuance of
a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the
parties hereto;
(ii) Revolving Notes and Bid Rate Notes executed by the
Borrower, payable to each Lender (or Designated Lender, if applicable)
and complying with the applicable provisions of Section 2.11., and the
Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of
the Effective Date;
(iv) An opinion of Sullivan & Worcester LLP, counsel to the
Loan Parties, addressed to the Agent, the Lenders and the Swingline
Lender, substantially in the form of Exhibit N-1, and opinion of
Ballard Spahr Andrews & Ingersoll, LLP, special Maryland and
Pennsylvania counsel to the Loan Parties, addressed to the Agent, the
Lenders and the Swingline Lender, substantially in the form of Exhibit
N-2;
(v) The declaration of trust of the Borrower certified as of a
recent date by the Department of Assessments and Taxation of the State
of Maryland;
(vi) A good standing certificate with respect to the Borrower
issued as of a recent date by the Department of Assessments and
Taxation of the State of Maryland and certificates of qualification to
transact business or other comparable certificates issued by the
Secretary of State (and any state department of taxation, as
applicable) of each state in which the Borrower is required to be so
qualified;
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(vii) A certificate of incumbency signed by the Secretary or
Assistant Secretary of the Borrower with respect to each of the
officers of the Borrower authorized to execute and deliver the Loan
Documents to which the Borrower is a party and the officers of the
Borrower then authorized to deliver Notices of Borrowing, Notices of
Swingline Borrowings, Bid Rate Quote Requests, Bid Rate Quote
Acceptances, Notices of Continuation and Notices of Conversion and to
request the issuance of Letters of Credit;
(viii) Copies, certified by the Secretary or Assistant
Secretary of the Borrower, of all corporate (or comparable) action
taken by the Borrower to authorize the execution, delivery and
performance of the Loan Documents to which the Borrower is a party;
(ix) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of each Guarantor certified as of a recent date by
the Secretary of State of the State of formation of such Guarantor;
(x) A certificate of good standing or certificate of similar
meaning with respect to each Guarantor issued as of a recent date by
the Secretary of State of the State of formation of each such Guarantor
and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which
such Guarantor is required to be so qualified;
(xi) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of each Guarantor with respect to each of the officers of such
Guarantor authorized to execute and deliver the Loan Documents to which
such Guarantor is a party;
(xii) Copies certified by the Secretary or Assistant Secretary
of each Guarantor (or other individual performing similar functions) of
(i) the by-laws of such Guarantor, if a corporation, the operating
agreement, if a limited liability company, the partnership agreement,
if a limited or general partnership, or other comparable document in
the case of any other form of legal entity and (ii) all corporate,
partnership, member or other necessary action taken by such Guarantor
to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(xiii) A copy of (x) each of the documents, instruments and
agreements evidencing any of the Indebtedness described on Schedule
6.1.(g) and (y) the Advisory Agreement, the Management Agreement and
each other Material Contract, in each case certified as true, correct
and complete by the chief executive officer or chief financial officer
of the Borrower;
(xiv) The Fees then due and payable under Section 3.6., and
any other Fees payable to the Agent, the Titled Agents and the Lenders
on or prior to the Effective Date;
(xv) A Compliance Certificate calculated as of December 31,
2000;
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(xvi) A letter from the Agent under the Existing Credit
Agreement to the effect that such agreement has terminated and all
amounts outstanding thereunder have been paid; and
(xvii) Such other documents, agreements and instruments as the
Administrative Agent on behalf of the Lenders may reasonably request;
and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent
or any of the Lenders any event, condition, situation or status since
the date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the
Borrower and its Subsidiaries delivered to the Agent and the Lenders
prior to the Agreement Date that has had or could reasonably be
expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1) result in a
Material Adverse Effect or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party;
(iii) The Borrower and its Subsidiaries shall have received
all approvals, consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (1) any Applicable Law or (2) any
agreement, document or instrument to which the Borrower or any other
Loan Party is a party or by which any of them or their respective
properties is bound, except for such approvals, consents, waivers,
filings and notices the receipt, making or giving of which would not
reasonably be likely to (A) have a Material Adverse Effect, or (B)
restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower
or any other Loan Party to fulfill its obligations under the Loan
Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents.
Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligations of the Lenders to make any Loans, of the Agent to issue
Letters of Credit, and of the Swingline Lender to make any Swingline Loan are
all subject to the further condition precedent that: (a) no Default or Event of
Default shall have occurred and be continuing as of the date of the making of
such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto; (b) the representations and warranties
made or deemed
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made by the Borrower and each other Loan Party in the Loan Documents to which
any of them is a party, shall be true and correct on and as of the date of the
making of such Loan or date of issuance of such Letter of Credit with the same
force and effect as if made on and as of such date except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted hereunder and (c) in the case
of the borrowing of Revolving Loans, the Agent shall have received a timely
Notice of Borrowing. Each Credit Event shall constitute a certification by the
Borrower to the effect set forth in the preceding sentence (both as of the date
of the giving of notice relating to such Credit Event and, unless the Borrower
otherwise notifies the Agent prior to the date of such Credit Event, as of the
date of the occurrence of such Credit Event). In addition, if such Credit Event
is the making of a Loan, the Borrower shall be deemed to have represented to the
Agent and the Lender at the time such Loan is made that all conditions to the
making of such Loan contained in Article V. have been satisfied.
Section 5.3. Conditions as Covenants.
If the Lenders make any Loans, or the Agent issues a Letter of Credit,
prior to the satisfaction of all conditions precedent set forth in Sections 5.1.
and 5.2., the Borrower shall nevertheless cause such condition or conditions to
be satisfied within 5 Business Days after the date of the making of such Loans
or the issuance of such Letter of Credit. Unless set forth in writing to the
contrary, the making of its initial Loan by a Lender shall constitute a
certification by such Lender to the Agent and the other Lenders that the
Borrower has satisfied the conditions precedent for initial Loans set forth in
Sections 5.1. and 5.2.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Loans and issue Letters of Credit, the Borrower represents
and warrants to the Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Borrower and its
Subsidiaries is a corporation, partnership or other legal entity, duly organized
or formed, validly existing and in good standing under the jurisdiction of its
incorporation or formation, has the power and authority to own or lease its
respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing
as a foreign corporation, partnership or other legal entity, and authorized to
do business, in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization and
where the failure to be so qualified or authorized would have, in each instance,
a Material Adverse Effect.
(b) Ownership Structure. As of the Agreement Date Part I of Schedule
6.1.(b) is a complete and correct list of all Subsidiaries of the Borrower
setting forth for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding any Equity Interests in such
Subsidiary, (iii) the nature of the Equity Interests held by each such
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Person, (iv) the percentage of ownership of such Subsidiary represented by such
Equity Interests and (v) whether such Subsidiary is a Material Subsidiary and/or
an Excluded Subsidiary. The parties hereto acknowledge that as of the Agreement
Date, neither HPT nor SNH is a Subsidiary. Except as disclosed in such Schedule,
as of the Agreement Date (i) each of the Borrower and its Subsidiaries owns,
free and clear of all Liens, and has the unencumbered right to vote, all
outstanding Equity Interests in each Person shown to be held by it on such
Schedule, (ii) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person. As of the Agreement
Date Part II of Schedule 6.1.(b) correctly sets forth all Unconsolidated
Affiliates of the Borrower, including the correct legal name of such Person, the
type of legal entity which each such Person is, and all Equity Interests in such
Person held directly or indirectly by the Borrower.
(c) Authorization of Agreement, Etc. The Borrower has the right and
power, and has taken all necessary action to authorize it, to borrow and obtain
other extensions of credit hereunder. The Borrower and each other Loan Party has
the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. The Loan Documents to which the Borrower or any
other Loan Party is a party have been duly executed and delivered by the duly
authorized officers of such Person and each is a legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein may be limited
by equitable principles generally.
(d) Compliance of Loan Documents with Laws, Etc. The execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which the Borrower or any other Loan Party is a party in accordance
with their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to the Borrower or any other Loan
Party; (ii) conflict with, result in a breach of or constitute a default under
the organizational documents of the Borrower or any other Loan Party, or any
indenture, agreement or other instrument to which the Borrower or any other Loan
Party is a party or by which it or any of its respective properties may be
bound; or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by the Borrower
or any other Loan Party.
(e) Compliance with Law; Governmental Approvals. The Borrower, each
Subsidiary and each other Loan Party is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
(including without limitation, Environmental
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Laws) relating to the Borrower, a Subsidiary or such other Loan Party except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, individually or in the aggregate, cause a Default or Event of Default
or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Part I of
Schedule 6.1.(f) sets forth all of the real property owned or leased by the
Borrower, each other Loan Party and each other Subsidiary. Each such Person has
good, marketable and legal title to, or a valid leasehold interest in, its
respective assets. As of the Agreement Date, there are no Liens against any
assets of the Borrower, any Subsidiary or any other Loan Party except for
Permitted Liens.
(g) Existing Indebtedness. Schedule 6.1.(g) is, as of February 28,
2001, a complete and correct listing of all (i) Indebtedness of the Borrower and
its Subsidiaries, including without limitation, Guarantees of the Borrower and
its Subsidiaries, and indicating whether such Indebtedness is Secured
Indebtedness or Unsecured Indebtedness. During the period from such date to the
Agreement Date, neither the Borrower nor any Subsidiary incurred any material
Indebtedness except as set forth on such Schedule. The Borrower and its
Subsidiaries have performed and are in compliance with all of the terms of such
Indebtedness and all instruments and agreements relating thereto, and no default
or event of default, or event or condition which with the giving of notice, the
lapse of time, or both, would constitute such a default or event of default,
exists with respect to any such Indebtedness.
(h) Material Contracts. Schedule 6.1.(h) is, as of the Agreement Date,
a true, correct and complete listing of all Material Contracts. Each of the
Borrower, its Subsidiaries and the other Loan Parties that is a party to any
Material Contract has performed and is in compliance with all of the terms of
such Material Contract, and no default or event of default, or event or
condition which with the giving of notice, the lapse of time, or both, would
constitute such a default or event of default, exists with respect to any such
Material Contract.
(i) Litigation. Except as set forth on Schedule 6.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Borrower, any Subsidiary or any other Loan Party or any of its respective
property in any court or before any arbitrator of any kind or before or by any
other Governmental Authority which could reasonably be expected to have a
Material Adverse Effect. There are no strikes, slow downs, work stoppages or
walkouts or other labor disputes in progress or threatened relating to the
Borrower, any Subsidiary or any other Loan Party.
(j) Taxes. All federal, state and other tax returns of the Borrower,
any Subsidiary or any other Loan Party required by Applicable Law to be filed
have been duly filed, and all federal, state and other taxes, assessments and
other governmental charges or levies upon the Borrower, any Subsidiary and each
other Loan Party and its respective properties, income, profits and assets which
are due and payable have been paid, except any such nonpayment which is at the
time permitted under Section 7.6. As of the Agreement Date, none of the United
States income tax returns of the Borrower, its Subsidiaries or any other Loan
Party is under audit. All
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charges, accruals and reserves on the books of the Borrower and each of its
Subsidiaries in respect of any taxes or other governmental charges are in
accordance with GAAP.
(k) Financial Statements. The Borrower has furnished to each Lender
copies of (i) the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries for the fiscal year ending December 31, 1999, and the
related audited consolidated statements of income, shareholders' equity and cash
flow for the fiscal year ending on such date, with the opinion thereon of Ernst
& Young LLP, and (ii) the unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries for the fiscal quarter ending September 30,
2000, and the related unaudited consolidated statements of income and cash flow
of the Borrower and its consolidated Subsidiaries for the three fiscal quarter
period ending on such date. Such financial statements (including in each case
related schedules and notes) are complete and correct and present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
consolidated financial position of the Borrower and its consolidated
Subsidiaries as at their respective dates and the results of operations and the
cash flow for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments). Neither the Borrower nor any
of its Subsidiaries has on the Agreement Date any material contingent
liabilities, liabilities, liabilities for taxes, unusual or long-term
commitments or unrealized or forward anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
financial statements or except as set forth on Schedule 6.1.(k).
(l) No Material Adverse Change. Since December 31, 1999, there has been
no material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Borrower and its consolidated
Subsidiaries taken as a whole. Each of the Borrower, its Subsidiaries and the
other Loan Parties is Solvent.
(m) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(n) Not Plan Assets; No Prohibited Transaction. None of the assets of
the Borrower, any Subsidiary or any other Loan Party constitute "plan assets"
within the meaning of ERISA, the Internal Revenue Code and the respective
regulations promulgated thereunder. The execution, delivery and performance of
this Agreement and the other Loan Documents, and the borrowing and repayment of
amounts hereunder, do not and will not constitute "prohibited transactions"
under ERISA or the Internal Revenue Code.
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(o) Absence of Defaults. Neither the Borrower, any Subsidiary nor any
other Loan Party is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event
has occurred, which has not been remedied, cured or waived: (i) which
constitutes a Default or an Event of Default; or (ii) which constitutes, or
which with the passage of time, the giving of notice, a determination of
materiality, the satisfaction of any condition, or any combination of the
foregoing, would constitute, a default or event of default by the Borrower, any
Subsidiary or any other Loan Party under any agreement (other than this
Agreement) or judgment, decree or order to which the Borrower or any Subsidiary
or other Loan Party is a party or by which the Borrower or any Subsidiary or
other Loan Party or any of their respective properties may be bound where such
default or event of default could, individually or in the aggregate, have a
Material Adverse Effect.
(p) Environmental Laws. Each of the Borrower, its Subsidiaries and the
other Loan Parties has obtained all Governmental Approvals which are required
under Environmental Laws and is in compliance with all terms and conditions of
such Governmental Approvals which the failure to obtain or to comply with could
reasonably be expected to have a Material Adverse Effect. Except for any of the
following matters that could not be reasonably expected to have a Material
Adverse Effect, (i) the Borrower is not aware of, and has not received notice
of, any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower, its
Subsidiaries and each other Loan Party, may interfere with or prevent compliance
or continued compliance with Environmental Laws, or may give rise to any
common-law or legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material; and (ii) there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice of violation, investigation, or proceeding pending or, to the Borrower's
knowledge after due inquiry, threatened, against the Borrower, its Subsidiaries
and each other Loan Party relating in any way to Environmental Laws.
(q) Investment Company; Public Utility Holding Company. Neither the
Borrower nor any Subsidiary nor any other Loan Party is (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject
to any other Applicable Law which purports to regulate or restrict its ability
to borrow money or to consummate the transactions contemplated by this Agreement
or to perform its obligations under any Loan Document to which it is a party.
(r) Margin Stock. Neither the Borrower, any Subsidiary nor any other
Loan Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System.
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(s) Affiliate Transactions. Except as permitted by Section 9.10.,
neither the Borrower, any Subsidiary nor any other Loan Party is a party to or
bound by any agreement or arrangement (whether oral or written) to which any
Affiliate of the Borrower, any Subsidiary or any other Loan Party is a party.
(t) Intellectual Property. Each of the Borrower and each Subsidiary
owns or has the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights, trade
names, trade name rights, trade secrets and copyrights (collectively,
"Intellectual Property") necessary to the conduct of its businesses as now
conducted and as contemplated by the Loan Documents, without known conflict with
any patent, license, franchise, trademark, trade secret, trade name, copyright,
or other proprietary right of any other Person. The Borrower and each such
Subsidiary have taken all such steps as they deem reasonably necessary to
protect their respective rights under and with respect to such Intellectual
Property. No material claim has been asserted by any Person with respect to the
use of any Intellectual Property by the Borrower or any Subsidiary, or
challenging or questioning the validity or effectiveness of any Intellectual
Property. The use of such Intellectual Property by the Borrower, its
Subsidiaries and the other Loan Parties, does not infringe on the rights of any
Person, subject to such claims and infringements as do not, in the aggregate,
give rise to any liabilities on the part of the Borrower and its Subsidiaries
that could reasonably be expected to have a Material Adverse Effect.
(u) Business. As of the Agreement Date, the Borrower and its
Subsidiaries are engaged substantially in the business of owning, operating and
developing office buildings, together with other business activities incidental
thereto.
(v) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party
for any other services rendered to the Borrower or any of its Subsidiaries
ancillary to the transactions contemplated hereby.
(w) Accuracy and Completeness of Information. No written information,
report or other papers or data (excluding financial projections and other
forward looking statements) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, the Borrower, any Subsidiary or any other Loan Party
in connection with or relating in any way to this Agreement, contained any
untrue statement of a fact material to the creditworthiness of the Borrower, any
Subsidiary or any other Loan Party or omitted to state a material fact necessary
in order to make such statements contained therein, in light of the
circumstances under which they were made, not misleading. All financial
statements furnished to the Agent or any Lender by, on behalf of, or at the
direction of, the Borrower, any Subsidiary or any other Loan Party in connection
with or relating in any way to this Agreement, present fairly, in accordance
with GAAP consistently applied throughout the periods involved, the financial
position of the Persons involved as at the date thereof and the results of
operations for such periods. All financial projections and other forward looking
statements prepared by or on behalf of the Borrower, any Subsidiary or any other
Loan Party that have been or may hereafter be made available to the Agent or any
Lender were or will be prepared in good faith based on reasonable assumptions.
No fact is known to the Borrower which has had, or may in the future have (so
far as the Borrower can reasonably
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foresee), a Material Adverse Effect which has not been set forth in the
financial statements referred to in Section 6.1.(k) or in such information,
reports or other papers or data or otherwise disclosed in writing to the Agent
and the Lenders prior to the Effective Date.
(x) REIT Status. The Borrower qualifies as a REIT and is in compliance
with all requirements and conditions imposed under the Internal Revenue Code to
allow the Borrower to maintain its status as a REIT.
(y) Unencumbered Assets. As of the Agreement Date, Part I of Schedule
6.1.(y) is a correct and complete list of all Unencumbered Assets and Part II of
such Schedule is a correct and complete list of all Unencumbered Mortgage Notes.
Each of the Properties included by the Borrower in calculations of Unencumbered
Asset Value satisfies all of the requirements contained in the definition of
"Unencumbered Asset". Each of the promissory notes included by the Borrower in
calculations of Unencumbered Asset Value satisfies all of the requirements
contained in the definition of "Unencumbered Mortgage Note".
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, any Subsidiary or
any other Loan Party to the Agent or any Lender pursuant to or in connection
with this Agreement or any of the other Loan Documents (including, but not
limited to, any such statement made in or in connection with any amendment
thereto or any statement contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower prior to the
Agreement Date and delivered to the Agent or any Lender in connection with
closing the transactions contemplated hereby) shall constitute representations
and warranties made by the Borrower under this Agreement. All representations
and warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and the
date of the occurrence of any Credit Event, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate
on and as of such earlier date) and except for changes in factual circumstances
specifically permitted hereunder. All such representations and warranties shall
survive the effectiveness of this Agreement, the execution and delivery of the
Loan Documents and the making of the Loans and the issuance of the Letters of
Credit.
ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 12.6., the Borrower
shall comply with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.7., the Borrower shall
preserve and maintain, and cause each Subsidiary and each other Loan Party to
preserve and maintain, its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its
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incorporation or formation and qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization and where
the failure to be so authorized and qualified could reasonably be expected to
have a Material Adverse Effect.
Section 7.2. Compliance with Applicable Law and Material Contracts.
The Borrower shall comply, and cause each Subsidiary and each other
Loan Party to comply, with (a) all Applicable Law, including the obtaining of
all Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect, and (b) all terms and conditions of
all Material Contracts to which it is a party.
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each Subsidiary and other Loan Party to, (a)
protect and preserve all of its material properties, including, but not limited
to, all Intellectual Property, and maintain in good repair, working order and
condition all tangible properties, ordinary wear and tear excepted, and (b) make
or cause to be made all needed and appropriate repairs, renewals, replacements
and additions to such properties, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
Section 7.4. Conduct of Business.
The Borrower shall at all times carry on, and cause its Subsidiaries
and the other Loan Parties to carry on, its respective businesses as described
in Section 6.1.(u).
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each Subsidiary and other Loan Party to,
maintain insurance with financially sound and reputable insurance companies
against such risks and in such amounts as is customarily maintained by Persons
engaged in similar businesses or as may be required by Applicable Law, and from
time to time deliver to the Agent or any Lender upon its request a detailed
list, together with copies of all policies of the insurance then in effect,
stating the names of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
Section 7.6. Payment of Taxes and Claims.
The Borrower shall, and shall cause each Subsidiary and other Loan
Party to, pay and discharge when due (a) all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any
properties belonging to it, and (b) all lawful claims of materialmen, mechanics,
carriers, warehousemen and landlords for labor, materials, supplies and rentals
which, if unpaid, might become a Lien on any properties of such Person;
provided, however, that this Section shall not require the payment or discharge
of any such tax, assessment, charge, levy or claim which is being contested in
good faith by appropriate proceedings which
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operate to suspend the collection thereof and for which adequate reserves have
been established on the books of the Borrower, such Subsidiary or such other
Loan Party, as applicable, in accordance with GAAP.
Section 7.7. Visits and Inspections.
The Borrower shall, and shall cause each Subsidiary and other Loan
Party to, permit representatives or agents of any Lender or the Agent, from time
to time after reasonable prior notice if no Event of Default shall be in
existence, as often as may be reasonably requested, but only during normal
business hours and at the expense of such Lender or the Agent (unless a Default
or Event of Default shall be continuing, in which case the exercise by the Agent
or such Lender of its rights under this Section shall be at the expense of the
Borrower), as the case may be, to: (a) visit and inspect all properties of the
Borrower or such Subsidiary or other Loan Party to the extent any such right to
visit or inspect is within the control of such Person; (b) inspect and make
extracts from their respective books and records, including but not limited to
management letters prepared by independent accountants; and (c) discuss with its
principal officers, and its independent accountants, its business, properties,
condition (financial or otherwise), results of operations and performance. If
requested by the Agent, the Borrower shall execute an authorization letter
addressed to its accountants authorizing the Agent or any Lender to discuss the
financial affairs of the Borrower and any Subsidiary or any other Loan Party
with its accountants.
Section 7.8. Use of Proceeds; Letters of Credit.
The Borrower shall use the proceeds of all Loans and all Letters of
Credit for general business purposes only. The Borrower shall not, and shall not
permit any Subsidiary or other Loan Party to, use any part of such proceeds or
Letters of Credit to purchase or carry, or to reduce or retire or refinance any
credit incurred to purchase or carry, any margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock.
Section 7.9. Environmental Matters.
The Borrower shall, and shall cause all of its Subsidiaries and the
other Loan Parties to, comply with all Environmental Laws the failure with which
to comply could reasonably be expected to have a Material Adverse Effect. If the
Borrower, any Subsidiary or any other Loan Party shall (a) receive notice that
any violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any administrative or judicial
complaint or order has been filed or is about to be filed against the Borrower,
any Subsidiary or any other Loan Party alleging violations of any Environmental
Law or requiring the Borrower, any Subsidiary or any other Loan Party to take
any action in connection with the release of Hazardous Materials or (c) receive
any notice from a Governmental Authority or private party alleging that the
Borrower, any Subsidiary or any other Loan Party may be liable or responsible
for costs associated with a response to or cleanup of a release of Hazardous
Materials or any damages caused thereby, and such notices, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
the Borrower shall provide the Agent and each Lender with a copy of such notice
within 30 days after the receipt thereof by the
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Borrower, any Subsidiary or any other Loan Party. The Borrower shall, and shall
cause its Subsidiaries and the other Loan Parties to, take promptly all actions
necessary to prevent the imposition of any Liens on any of their respective
properties arising out of or related to any Environmental Laws.
Section 7.10. Books and Records.
The Borrower shall, and shall cause each of its Subsidiaries and the
other Loan Parties to, maintain books and records pertaining to its respective
business operations in such detail, form and scope as is consistent with good
business practice and in accordance with GAAP.
Section 7.11. Further Assurances.
The Borrower shall, at the Borrower's cost and expense and upon request
of the Agent, execute and deliver or cause to be executed and delivered, to the
Agent such further instruments, documents and certificates, and do and cause to
be done such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
Section 7.12. New Subsidiaries/Guarantors.
(a) Requirement to Become Guarantor. Within 30 days of any Person
(other than an Excluded Subsidiary) becoming a Material Subsidiary after the
Effective Date, the Borrower shall deliver to the Agent each of the following
items, each in form and substance satisfactory to the Agent: (a) an Accession
Agreement executed by such Material Subsidiary and (b) the items that would have
been delivered under Sections 5.1.(a)(iv) and (ix) through (xii) if such
Material Subsidiary had been one on the Effective Date; provided, however,
promptly (and in any event within 5 Business Days) upon any Excluded Subsidiary
ceasing to be subject to the restriction which prevented it from delivering an
Accession Agreement pursuant to this Section, such Subsidiary shall comply with
the provisions of this Section. The Agent shall send to each Lender copies of
each of the foregoing items once the Agent has received all such items with
respect to a Material Subsidiary.
(b) Release of a Guarantor. The Borrower may request in writing that
the Agent release, and upon receipt of such request the Agent shall release, a
Guarantor from the Guaranty so long as: (i) such Guarantor meets, or will meet
simultaneously with its release from the Guaranty, all of the provisions of the
definition of the term "Excluded Subsidiary" or has ceased to be, or
simultaneously with its release from the Guaranty will cease to be, a Material
Subsidiary; (ii) such Guarantor is not otherwise required to be a party to the
Guaranty under the immediately preceding subsection (a); (iii) no Default or
Event of Default shall then be in existence or would occur as a result of such
release, including without limitation, a Default or Event of Default resulting
from a violation of any of the covenants contained in Section 9.1.; and (iv) the
Agent shall have received such written request at least 10 Business Days prior
to the requested date of release. Delivery by the Borrower to the Agent of any
such request shall constitute a representation by the Borrower that the matters
set forth in the preceding sentence (both as of the date of the giving of such
request and as of the date of the effectiveness of such request) are true and
correct with respect to such request.
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Section 7.13. REIT Status.
The Borrower shall at all times maintain its status as a REIT.
Section 7.14. Exchange Listing.
The Borrower shall maintain at least one class of common shares of the
Borrower having trading privileges on the New York Stock Exchange or the
American Stock Exchange or which is the subject of price quotations in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System.
ARTICLE VIII. INFORMATION
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:
Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 45 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such period and the related unaudited consolidated statements of
income, shareholders' equity and cash flows of the Borrower and its Subsidiaries
for such period, setting forth in each case in comparative form the figures as
of the end of and for the corresponding periods of the previous fiscal year, all
of which shall be certified by the chief financial officer of the Borrower, in
his or her opinion, to present fairly, in accordance with GAAP, the consolidated
financial position of the Borrower and its Subsidiaries as at the date thereof
and the results of operations for such period (subject to normal year-end audit
adjustments). Together with such financial statements, the Borrower shall
deliver reports, in form and detail satisfactory to the Agent, setting forth (a)
a statement of Funds From Operations for the fiscal quarter then ending; (b) all
capital expenditures made during the fiscal quarter then ended; (c) a
description of all Properties acquired during such fiscal quarter, including the
net operating income of each such Property, acquisition costs and related
mortgage debt and such other information as the Agent may request.
Section 8.2. Year-End Statements.
Within 90 days after the end of each fiscal year of the Borrower, the
audited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related audited consolidated statements of
income, shareholders' equity and cash flows of the Borrower and its Subsidiaries
for such fiscal year, setting forth in comparative form the figures as at the
end of and for the previous fiscal year, all of which shall be certified by (a)
the chief financial officer of the Borrower, in his or her opinion, to present
fairly, in accordance with GAAP, the consolidated financial position of the
Borrower and its Subsidiaries as at the date thereof and the
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results of operations for such period and (b) independent certified public
accountants of recognized national standing acceptable to the Agent, whose
certificate shall be unqualified and in scope and substance satisfactory to the
Requisite Lenders and who shall have authorized the Borrower to deliver such
financial statements and certification thereof to the Agent and the Lenders
pursuant to this Agreement. Together with such financial statements, the
Borrower shall deliver a report, in form and detail satisfactory to the Agent,
setting forth the Net Operating Income for each Property for such fiscal year.
Section 8.3. Compliance Certificate.
At the time financial statements are furnished pursuant to Sections
8.1. and 8.2., and within 5 Business Days of the Agent's request with respect to
any other fiscal period, a certificate substantially in the form of Exhibit O (a
"Compliance Certificate") executed by the chief financial officer of the
Borrower: (a) setting forth in reasonable detail as at the end of such quarterly
accounting period, fiscal year, or other fiscal period, as the case may be, the
calculations required to establish whether or not the Borrower was in compliance
with the covenants contained in Sections 9.1. through 9.3. and 9.6., and (b)
stating that, to the best of his or her knowledge, information and belief after
due inquiry, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrower with respect
to such event, condition or failure.
Section 8.4. Other Information.
(a) Management Reports. Promptly upon receipt thereof, copies of all
management reports, if any, submitted to the Borrower or its Board of Trustees
by its independent public accountants including;
(b) Securities Filings. Within 5 Business Days of the filing thereof,
copies of all registration statements (excluding the exhibits thereto (unless
requested by the Agent) and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which the Borrower, any Subsidiary or any other Loan
Party shall file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor) or any national securities
exchange;
(c) Shareholder Information. Promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed and promptly upon the issuance thereof
copies of all press releases issued by the Borrower, any Subsidiary or any other
Loan Party;
(d) ERISA. If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent
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or has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal Revenue Code,
a copy of such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial officer of the Borrower
setting forth details as to such occurrence and the action, if any, which the
Borrower or applicable member of the ERISA Group is required or proposes to
take;
(e) Litigation. To the extent the Borrower or any Subsidiary is aware
of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Borrower or any
Subsidiary or any of their respective properties, assets or businesses which
could reasonably be expected to have a Material Adverse Effect, and prompt
notice of the receipt of notice that any United States income tax returns of the
Borrower or any of its Subsidiaries are being audited;
(f) Modification of Organizational Documents. A copy of any amendment
to the articles of incorporation, bylaws, partnership agreement or other similar
organizational documents of the Borrower or any other Loan Party promptly upon,
and in any event within 15 Business Days of, the effectiveness thereof;
(g) Change of Management or Financial Condition. Prompt notice of any
change in the senior management of the Borrower, any Subsidiary or any other
Loan Party and any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Borrower, any
Subsidiary or any other Loan Party which has had or could reasonably be expected
to have Material Adverse Effect;
(h) Default. Notice of the occurrence of any of the following promptly
upon a Responsible Officer obtaining knowledge thereof: (i) any Default or Event
of Default or (ii) any event which constitutes or which with the passage of
time, the giving of notice, or otherwise, would constitute a default or event of
default by the Borrower, any Subsidiary or any other Loan Party under any
Material Contract to which any such Person is a party or by which any such
Person or any of its respective properties may be bound;
(i) Judgments. Prompt notice of any order, judgment or decree in excess
of $5,000,000 having been entered against the Borrower, any Subsidiary or any
other Loan Party or any of their respective properties or assets;
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(j) Notice of Violations of Law. Prompt notice if the Borrower, any
Subsidiary or any other Loan Party shall receive any notification from any
Governmental Authority alleging a violation of any Applicable Law or any inquiry
which could reasonably be expected to have a Material Adverse Effect;
(k) Material Subsidiary. Prompt notice of any Person becoming a
Material Subsidiary;
(l) Material Asset Sales. Prompt notice of the sale, transfer or other
disposition of any material assets of the Borrower, any Subsidiary or any other
Loan Party to any Person other than the Borrower, any Subsidiary or any other
Loan Party;
(m) Material Contracts. Promptly upon entering into any Material
Contract after the Agreement Date, a copy to the Agent of such Material
Contract; and
(n) Other Information. From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations or business prospects of the Borrower
or any of its Subsidiaries as the Agent or any Lender may reasonably request.
ARTICLE IX. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrower shall
comply with the following covenants:
Section 9.1. Financial Covenants.
The Borrower shall not permit:
(a) Leverage Ratio. The ratio of (i) Total Indebtedness to (ii) Total
Asset Value, to exceed 0.550 to 1.0 at any time.
(b) Interest Coverage Ratio. The ratio of (i) EBITDA of the Borrower
and its Subsidiaries determined on a consolidated basis for the fiscal quarter
of the Borrower most recently ending to (ii) Interest Expense of the Borrower
and its Subsidiaries determined on a consolidated basis for such period, to be
less than 2.0 to 1.0 at any time.
(c) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted
EBITDA for the fiscal quarter of the Borrower most recently ending to (ii) Fixed
Charges for such period, to be less than 1.750 to 1.00 at any time.
(d) Secured Indebtedness. The ratio of (i)(x) Secured Indebtedness of
the Borrower and its Subsidiaries to (y) Total Asset Value, to be greater than
0.30 to 1.00 at any time; and (ii)(x) Secured Indebtedness (other than
Nonrecourse Indebtedness) of the Borrower and its Subsidiaries to (y) Total
Asset Value, to be greater than 0.15 to 1.00 at any time.
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(e) Unencumbered Leverage Ratio. The ratio of (i) Unencumbered Asset
Value to (ii) Unsecured Indebtedness, to be less than 1.750 to 1.00 at any time.
(f) Unencumbered Interest Coverage Ratio. The ratio of (i) Unencumbered
Net Operating Income to (ii) Unsecured Debt Service for the Borrower's fiscal
quarter most recently ending, to be less than 2.0 to 1.0 at any
time.
(g) Minimum Tangible Net Worth. Tangible Net Worth at any time to be
less than (i) $1,150,000,000 plus (ii) 75% of the Net Proceeds of all Equity
Issuances effected by the Borrower or any Subsidiary (other Equity Issuances to
the Borrower or any Subsidiary) after the Agreement Date.
(h) Floating Rate Debt. The aggregate principal amount of all
outstanding Floating Rate Debt to exceed $600,000,000 at any time.
(i) Total Assets Owned by Borrower and Guarantors. The amount of Total
Asset Value directly owned by the Borrower and the Guarantors to be less than
95.0% of Total Asset Value (excluding the amount of Total Asset Value, if any,
then attributable to Excluded Subsidiaries).
Section 9.2. Indebtedness.
The Borrower shall not, and shall not permit any Subsidiary or any
other Loan Party to, create, incur, assume, or permit or suffer to exist, any
Indebtedness other than the following:
(a) the Obligations;
(b) Indebtedness set forth on Schedule 6.1.(g);
(c) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries; provided, however, that the obligations of the Borrower and each
Guarantor in respect of such intercompany Indebtedness shall be subordinate to
the Obligations; and
(d) any other Indebtedness of a type not described above in this
Section and created, incurred or assumed after the Agreement Date so long as
immediately prior to the creation, incurring or assumption thereof, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
Section 9.1.
Section 9.3. Certain Permitted Investments.
The Borrower shall not, and shall not permit any Subsidiary or any
other Loan Party to, make any Investment in or otherwise own the following items
which would cause the aggregate value of such holdings of the Borrower and such
other Subsidiaries to exceed the applicable limits set forth below at such time:
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(a) Investments in Persons which are not Subsidiaries
(including ownership of Indebtedness secured by real property but
excluding the Borrower's Investments in SNH and HPT), such that the
aggregate book value of such Investments exceeds 25.0% of Total Asset
Value at any time;
(b) Developable Property, such that the aggregate book value
of all such Developable Property exceeds 7.5% of Total Asset Value at
any time;
(c) Assets Under Development such that the aggregate
Construction Budget for all such Assets Under Development exceeds 15.0%
of Total Asset Value at any time. For purposes of this subsection, (i)
"Construction Budget" means the fully-budgeted costs for the
acquisition and construction of a given piece of real property
(including without limitation, the cost of acquiring such piece of real
property (except to the extent any portion thereof is Developable
Property included in the immediately preceding subsection (b)),
reserves for construction interest and operating deficits, tenant
improvements, leasing commissions, and infrastructure costs) as
reasonably determined by the Borrower in good faith and (ii) real
property under construction to be (but not yet) acquired by the
Borrower or a Subsidiary upon completion of construction pursuant to a
contract in which the seller of such real property is required to
complete construction prior to, and as a condition precedent to, such
acquisition, shall be subject to this subsection; and
(d) Investments in "taxable REIT subsidiaries" (as defined in
Section 856(l) of the Internal Revenue Code), such that the aggregate
book value of such Investments exceeds 20% of Total Asset Value at any
time.
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a), (b) and (d) shall
not exceed 25.0% of Total Asset Value at any time.
Section 9.4. Investments Generally.
The Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to, directly or indirectly, acquire, make or purchase any Investment,
or permit any Investment of such Person to be outstanding on and after the
Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.1.(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any
other Person who after giving effect to such acquisition would be a Subsidiary,
so long as in each case (i) immediately prior to such Investment, and after
giving effect thereto, no Default or Event of Default is or would be in
existence and (ii) if such Subsidiary is (or after giving effect to such
Investment would become) a Material Subsidiary, the terms and conditions set
forth in Section 7.12. are satisfied;
(c) Investments permitted under Section 9.3.;
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(d) Investments in Cash Equivalents;
(e) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries provided that such Indebtedness is permitted by the terms of
Section 9.2.;
(f) loans and advances to officers and employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business consistent with past practices; and
(g) any other Investment so long as immediately prior to making such
Investment, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of Section
7.4.
Notwithstanding the foregoing, the Borrower shall not, and shall not permit any
Subsidiary to, directly or indirectly, acquire, make or purchase any Investment
that is an Equity Interest in HPT or SNH, or permit any such Investment to be
outstanding on and after the Agreement Date, other than the Investments set
forth on Schedule 9.4.
Section 9.5. Liens; Negative Pledges; Other Matters.
(a) The Borrower shall not, and shall not permit any Subsidiary or
other Loan Party to, create, assume, or incur any Lien (other than Permitted
Liens) upon any of its properties, assets, income or profits of any character
whether now owned or hereafter acquired if immediately prior to the creation,
assumption or incurring of such Lien, or immediately thereafter, a Default or
Event of Default is or would be in existence, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 9.1.;
(b) The Borrower shall not, and shall not permit any Subsidiary or
other Loan Party to, enter into, assume or otherwise be bound by any Negative
Pledge except for a Negative Pledge contained in any agreement (i) evidencing
Indebtedness which the Borrower or such Subsidiary may create, incur, assume, or
permit or suffer to exist under Section 9.2.; (ii) which Indebtedness is secured
by a Lien permitted to exist and (iii) which prohibits the creation of any other
Lien on only the property securing such Indebtedness as of the date such
agreement was entered into;
(c) The Borrower shall not, and shall not permit any Subsidiary or
other Loan Party to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary (other than an Excluded Subsidiary) to: (i) pay dividends or
make any other distribution on any of such Subsidiary's capital stock or other
equity interests owned by the Borrower or any Subsidiary; (ii) pay any
Indebtedness owed to the Borrower or any Subsidiary; (iii) make loans or
advances to the Borrower or any Subsidiary; or (iv) transfer any of its property
or assets to the Borrower or any Subsidiary.
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Section 9.6. Restricted Payments.
The Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to, declare or make any Restricted Payment; provided, however, that:
(a) the Borrower may declare or make cash distributions to its
shareholders during any fiscal year in an aggregate amount not to exceed the
greater of (i) 90.0% of Funds From Operations of the Borrower for such fiscal
year or (ii) the amount for the Borrower to remain in compliance with Section
7.13.;
(b) the Borrower may make cash distributions to its shareholders of
capital gains resulting from gains from certain asset sales to the extent
necessary to avoid payment of taxes on such asset sales imposed under Sections
857(b)(3) and 4981 of the Internal Revenue Code;
(c) the Borrower may make cash payments to repurchase outstanding
shares of any of its Preferred Stock, common stock or other similar common
Equity Interests;
(d) Subsidiaries may pay Restricted Payments to the Borrower or any
other Subsidiary; and
(e) the Borrower may distribute any extraordinary distributions
received by the Borrower in respect of its Investments in SNH and HPT.
Notwithstanding the foregoing, but subject to the following sentence, if a
Default or Event of Default shall have occurred and be continuing, the Borrower
may only declare or make cash distributions to its shareholders during any
fiscal year in an aggregate amount not to exceed the minimum amount necessary
for the Borrower to remain in compliance with Section 7.13. If a Default or
Event of Default specified in Section 10.1.(a), Section 10.1.(f) or Section
10.1.(g) shall have occurred and be continuing, or if as a result of the
occurrence of any other Event of Default the Obligations have been accelerated
pursuant to Section 10.2.(a), the Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, make any Restricted Payments to any Person
whatsoever other than to the Borrower or any Subsidiary.
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.
The Borrower shall not, and shall not permit any Subsidiary or other
Loan Party to: (i) enter into any transaction of merger or consolidation; (ii)
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); or (iii) convey, sell, lease, sublease, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets, whether now owned or hereafter
acquired; provided, however, that:
(a) any of the actions described in the immediately preceding clauses
(i) through (iii) may be taken with respect to any Subsidiary or any other Loan
Party (other than the Borrower) so long as immediately prior to the taking of
such action, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence;
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(b) the Borrower, its Subsidiaries and the other Loan Parties may lease
and sublease their respective assets, as lessor or sublessor (as the case may
be), in the ordinary course of their business;
(c) a Person may merge with and into the Borrower so long as (i) the
Borrower is the survivor of such merger, (ii) immediately prior to such merger,
and immediately thereafter and after giving effect thereto, no Default or Event
of Default is or would be in existence; and (iii) the Borrower shall have given
the Agent and the Lenders at least 10 Business Days' prior written notice of
such merger (except that such prior notice shall not be required in the case of
the merger of a Subsidiary with and into the Borrower); and
(d) the Borrower and each Subsidiary may sell, transfer or dispose of
assets among themselves.
Section 9.8. Fiscal Year.
The Borrower shall not change its fiscal year from that in effect as of
the Agreement Date.
Section 9.9. Modifications to Advisory Agreement and Other Material Contracts.
The Borrower shall not default in any material respect in the
performance of any of its obligations under the Advisory Agreement or the
Management Agreement or permit the Advisory Agreement or the Management
Agreement to be canceled or terminated prior to its stated maturity. The
Borrower shall not enter into any amendment, modification or waiver of or with
respect to any of the terms of the Advisory Agreement or the Management
Agreement, except for extensions thereof. With respect to Material Contracts
other than the Advisory Agreement and the Management Agreement, the Borrower
shall not, and shall not permit any Subsidiary or other Loan Party to, enter
into any amendment or modification to any such Material Contract which could
reasonably be expected to have a Material Adverse Effect.
Section 9.10. Transactions with Affiliates.
The Borrower shall not, and shall not permit any of its Subsidiaries or
any other Loan Party to, permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate, except transactions in the
ordinary course of and pursuant to the reasonable requirements of the business
of the Borrower or any of its Subsidiaries and upon fair and reasonable terms
which are no less favorable to the Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person that is not an
Affiliate.
Section 9.11. ERISA Exemptions.
The Borrower shall not, and shall not permit any Subsidiary to, permit
any of its respective assets to become or be deemed to be "plan assets" within
the meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder.
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ARTICLE X. DEFAULT
Section 10.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment of Principal. The Borrower shall fail to pay
when due (whether upon demand, at maturity, by reason of acceleration or
otherwise) the principal of any of the Loans, or any Reimbursement Obligation.
(b) Default in Payment of Interest and Other Obligations. The Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrower under this Agreement or any other Loan
Document, or any other Loan Party shall fail to pay when due any payment
Obligation owing by such other Loan Party under any Loan Document to which it is
a party, and such failure shall continue for a period of 5 Business Days.
(c) Default in Performance. (i) The Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in Section 8.4.(h)
or in Article IX. or (ii) the Borrower or any other Loan Party shall fail to
perform or observe any term, covenant, condition or agreement contained in this
Agreement or any other Loan Document to which it is a party and not otherwise
mentioned in this Section and such failure shall continue for a period of 30
days after the earlier of (x) the date upon which a Responsible Officer of the
Borrower or such Loan Party obtains knowledge of such failure or (y) the date
upon which the Borrower has received written notice of such failure from the
Agent.
(d) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower or any other Loan
Party under this Agreement or under any other Loan Document, or any amendment
hereto or thereto, or in any other writing or statement at any time furnished or
made or deemed made by or on behalf of the Borrower or any other Loan Party to
the Agent or any Lender, shall at any time prove to have been incorrect or
misleading, in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default.
(i) The Borrower, any Subsidiary or any other Loan Party shall
fail to pay when due and payable the principal of, or interest on, any
Indebtedness or Subordinated Debt (other than (A) the Loans and (B)
Nonrecourse Indebtedness of Excluded Subsidiaries) having an aggregate
outstanding principal amount of $10,000,000 or more ("Material
Indebtedness") or any Excluded Subsidiary shall fail to pay when due
and payable the principal of, or interest on, Nonrecourse Indebtedness
having an aggregate outstanding principal amount of $75,000,000 or
more; or
(ii) (x) The maturity of any Material Indebtedness shall have
been accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing,
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providing for the creation of or otherwise concerning such Material
Indebtedness or (y) any Material Indebtedness shall have been required
to be prepaid or repurchased prior to the stated maturity thereof; or
(iii) any other event shall have occurred and be continuing
which, with or without the passage of time, the giving of notice, or
both, would permit any holder or holders of Material Indebtedness, any
trustee or agent acting on behalf of such holder or holders or any
other Person, to accelerate the maturity of any such Material
Indebtedness or require any such Material Indebtedness to be prepaid or
repurchased prior to its stated maturity.
(f) Voluntary Bankruptcy Proceeding. The Borrower, any other Loan Party
or any Subsidiary (other than (x) an Excluded Subsidiary all Indebtedness of
which is Nonrecourse Indebtedness or (y) a Subsidiary that, together with all
other Subsidiaries then subject to a bankruptcy proceeding or other proceeding
or condition described in this subsection or the immediately following
subsection, does not account for more than $10,000,000 of Total Asset Value)
shall: (i) commence a voluntary case under the Bankruptcy Code of 1978, as
amended, or other federal bankruptcy laws (as now or hereafter in effect); (ii)
file a petition seeking to take advantage of any other Applicable Laws, domestic
or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; (iii) consent to, or fail to contest in a
timely and appropriate manner, any petition filed against it in an involuntary
case under such bankruptcy laws or other Applicable Laws or consent to any
proceeding or action described in the immediately following subsection; (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii)
take any corporate or partnership action for the purpose of effecting any of the
foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower, any other Loan Party or any Subsidiary (other
than (x) an Excluded Subsidiary all Indebtedness of which is Nonrecourse
Indebtedness or (y) a Subsidiary that, together with all other Subsidiaries then
subject to a bankruptcy proceeding or other proceeding or condition described in
this subsection or the immediately preceding subsection, does not account for
more than $10,000,000 of Total Asset Value) or any other Loan Party, in any
court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code of
1978, as amended, or other federal bankruptcy laws (as now or hereafter in
effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person, and such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive calendar days, or an
order granting the remedy or other relief requested in such case or proceeding
against the Borrower, such Subsidiary or such other Loan Party (including, but
not limited to, an order for relief under such Bankruptcy Code or such other
federal bankruptcy laws) shall be entered.
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(h) Litigation; Enforceability. The Borrower or any other Loan Party
shall disavow, revoke or terminate (or attempt to terminate) any Loan Document
to which it is a party or shall otherwise challenge or contest in any action,
suit or proceeding in any court or before any Governmental Authority the
validity or enforceability of this Agreement, any Note or any other Loan
Document or this Agreement, any Note, the Guaranty or any other Loan Document
shall cease to be in full force and effect (except as a result of the express
terms thereof).
(i) Judgment. A judgment or order for the payment of money or for an
injunction shall be entered against the Borrower, any Subsidiary or any other
Loan Party, by any court or other tribunal and (i) such judgment or order shall
continue for a period of 30 days without being paid, stayed or dismissed through
appropriate appellate proceedings and (ii) either (A) the amount of such
judgment or order for which insurance has not been acknowledged in writing by
the applicable insurance carrier (or the amount as to which the insurer has
denied liability) exceeds, individually or together with all other such
outstanding judgments or orders entered against the Borrower, such Subsidiaries
and such other Loan Parties, $10,000,000 or (B) in the case of an injunction or
other non-monetary judgment, such judgment could reasonably be expected to have
a Material Adverse Effect.
(j) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower, any Subsidiary or
any other Loan Party which exceeds, individually or together with all other such
warrants, writs, executions and processes, $10,000,000 in amount and such
warrant, writ, execution or process shall not be discharged, vacated, stayed or
bonded for a period of 30 days; provided, however, that if a bond has been
issued in favor of the claimant or other Person obtaining such warrant, writ,
execution or process, the issuer of such bond shall execute a waiver or
subordination agreement in form and substance satisfactory to the Agent pursuant
to which the issuer of such bond subordinates its right of reimbursement,
contribution or subrogation to the Obligations and waives or subordinates any
Lien it may have on the assets of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
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(m) Change of Control.
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person will be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 15% of the total voting power of the then
outstanding voting stock of the Borrower; or
(ii) during any period of 12 consecutive months ending after
the Agreement Date, individuals who at the beginning of any such
12-month period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Borrower was
approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of
the Borrower then in office;
(iii) at least 750,000 shares of the outstanding common stock
of the Borrower (such number to be adjusted for any division,
reclassification, stock dividend and any other similar dilutive events)
shall in the aggregate cease to be owned beneficially and of record by
(A) Barry M. Portnoy or Gerard M. Martin; (B) any of their immediate
family members consisting of their respective spouses and lineal
descendants (whether natural or adopted), and (C) any corporations,
limited liability companies, trusts or other legal entities which are
beneficially owned solely by any of the foregoing;
(iv) RMR shall cease for any reason to act as the sole
investment advisor to the Borrower; or
(v) any three of Barry M. Portnoy, Gerard M. Martin, John C.
Popeo, John A. Mannix, David M. Lepore or Jennifer B. Clark (or a
substitute elected by the directors or trustees of RMR or the Borrower,
as the case may be, and which is reasonably satisfactory to the
Requisite Lenders) shall cease to serve as an officer, director or
trustee of RMR or the Borrower in a position, in the case of an
officer, of equal or greater seniority to the respective offices each
holds with RMR or the Borrower, as the case may be as of the Agreement
Date.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Sections 10.1.(f) or 10.1.(g), (A)(i) the principal of,
and all accrued interest on, the Loans and the Notes at the time
outstanding, (ii) an amount equal to the Stated Amount of all
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Letters of Credit outstanding as of the date of the occurrence of such
Event of Default and (iii) all of the other Obligations of the
Borrower, including, but not limited to, the other amounts owed to the
Lenders, the Swingline Lender and the Agent under this Agreement, the
Notes or any of the other Loan Documents shall become immediately and
automatically due and payable by the Borrower without presentment,
demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower and (B) all of the Commitments, the
obligation of the Lenders to make Revolving Loans, the Swingline
Commitment, the obligation of the Swingline Lender to make Swingline
Loans, and the obligation of the Agent to issue Letters of Credit
hereunder, shall all immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, the Agent shall, at the direction of the
Requisite Lenders: (A) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an
amount equal to the Stated Amount of all Letters of Credit outstanding
as of the date of the occurrence of such other Event of Default and (3)
all of the other Obligations, including, but not limited to, the other
amounts owed to the Lenders and the Agent under this Agreement, the
Notes or any of the other Loan Documents to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by the Borrower and (B) terminate the
Commitments and the obligation of the Lenders to make Loans hereunder
and the obligation of the Agent to issue Letters of Credit hereunder.
Further, if the Agent has exercised any of the rights provided under
the preceding sentence, the Swingline Lender shall: (x) declare the
principal of, and accrued interest on, the Swingline Loans and the
Swingline Note at the time outstanding, and all of the other
Obligations owing to the Swingline Lender, to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by the Borrower and (y) terminate the
Swingline Commitment and the obligation of the Swingline Lender to make
Swingline Loans.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise any and all of its rights under any and
all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise all other rights and remedies it may
have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of the Borrower and its Subsidiaries, without notice
of any kind whatsoever and without regard to the adequacy of any security for
the Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Borrower and
its Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
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Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 10.1.(f) or
10.1.(g), the Commitments shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and
maturity of any of the Obligations has been accelerated, all payments received
by the Agent under any of the Loan Documents, in respect of any principal of or
interest on the Obligations or any other amounts payable by the Borrower
hereunder or thereunder, shall be applied in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of
fees and expenses due under Section 12.2.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(d) payments of principal of Swingline Loans;
(e) payments of principal of all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(f) amounts to be deposited into the Collateral Account in
respect of Letters of Credit;
(g) amounts due the Agent and the Lenders pursuant to Sections
11.7. and 12.9.;
(h) payments of all other amounts due and owing by the
Borrower under any of the Loan Documents, if any, to be applied for the
ratable benefit of the Lenders; and
(i) any amount remaining after application as provided above,
shall be paid to the Borrower or whomever else may be legally entitled
thereto.
Section 10.5. Collateral Account.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities and the other Obligations, the Borrower hereby
pledges and grants to the Agent, for the benefit of the Agent and the Lenders as
provided herein, a security interest in all of its right, title and interest in
and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall not
constitute payment of any Letter of Credit Liabilities until applied by the
Agent as provided herein. Anything in this
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Agreement to the contrary notwithstanding, funds held in the Collateral Account
shall be subject to withdrawal only as provided in this Section and in Section
2.14.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such Cash Equivalents as the Agent shall determine in
its sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent. The Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the Agent
accords other funds deposited with the Agent, it being understood that the Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any funds held in the Collateral
Account.
(c) If an Event of Default shall have occurred and be continuing, the
Requisite Lenders may, in their discretion, at any time and from time to time,
instruct the Agent to liquidate any such investments and reinvestments and
credit the proceeds thereof to the Collateral Account and apply or cause to be
applied such proceeds and any other balances in the Collateral Account to the
payment of any of the Letter of Credit Liabilities due and payable.
(d) If (i) no Default or Event of Default has occurred and is
continuing and (ii) all of the Letter of Credit Liabilities have been paid in
full, the Agent shall, from time to time, at the request of the Borrower,
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time.
(e) The Borrower shall pay to the Agent from time to time such fees as
the Agent normally charges for similar services in connection with the Agent's
administration of the Collateral Account and investments and reinvestments of
funds therein.
Section 10.6. Performance by Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
Section 10.7. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any
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of the Lenders in exercising any right shall operate as a waiver of it, nor
shall any single or partial exercise of any power or right preclude its other or
further exercise or the exercise of any other power or right.
ARTICLE XI. THE AGENT
Section 11.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such
action as contractual representative on such Lender's behalf and to exercise
such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender nor to impose
on the Agent duties or obligations other than those expressly provided for
herein. At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents. The Agent will also
furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Agent by the Borrower, any Loan Party or
any other Affiliate of the Borrower, pursuant to this Agreement or any other
Loan Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of any of the Obligations), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders (or all of the
Lenders if explicitly required under any other provision of this Agreement), and
such instructions shall be binding upon all Lenders and all holders of any of
the Obligations; provided, however, that, notwithstanding anything in this
Agreement to the contrary, the Agent shall not be required to take any action
which exposes the Agent to personal liability or which is contrary to this
Agreement or any other Loan Document or Applicable Law. Not in limitation of the
foregoing, the Agent shall not exercise any right or remedy it or the Lenders
may have under any Loan Document upon the occurrence of a Default or an Event of
Default unless the Requisite Lenders have so directed the Agent to exercise such
right or remedy.
Section 11.2. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Agent: (a) may treat the payee of any Note as
the holder
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thereof until the Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to the Agent; (b) may
consult with legal counsel (including its own counsel or counsel for the
Borrower or any other Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender or
any other Person and shall not be responsible to any Lender or any other Person
for any statements, warranties or representations made by any Person in or in
connection with this Agreement or any other Loan Document; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any of this Agreement or any other Loan
Document or the satisfaction of any conditions precedent under this Agreement or
any Loan Document on the part of the Borrower or other Persons or inspect the
property, books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any collateral covered thereby or the perfection or priority of any Lien in
favor of the Agent on behalf of the Lenders in any such collateral; and (f)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telephone or telecopy) believed by it to be genuine and
signed, sent or given by the proper party or parties.
Section 11.3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default." Further, if the
Agent receives such a "notice of default", the Agent shall give prompt notice
thereof to the Lenders.
Section 11.4. First Union as Lender.
First Union, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include First Union in each case in
its individual capacity. First Union and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with, the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from the Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders.
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Section 11.5. Approvals of Lenders.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Agent by the Borrower in respect of the matter or issue to be resolved, and
(d) shall include the Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within 10
Business Days (or such lesser or greater period as may be specifically required
under the Loan Documents) of receipt of such communication. Except as otherwise
provided in this Agreement and except with respect to items requiring the
unanimous consent or approval of the Lenders under Section 12.6., unless a
Lender shall give written notice to the Agent that it specifically objects to
the recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the applicable time
period for reply, such Lender shall be deemed to have conclusively approved of
or consented to such recommendation or determination.
Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties
as to the financial condition, operations, creditworthiness, solvency or other
information concerning the business or affairs of the Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that no act by the
Agent hereafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any such representation or warranty by the Agent
to any Lender. Each Lender acknowledges that it has, independently and without
reliance upon the Agent, any other Lender or counsel to the Agent, or any of
their respective officers, directors, employees and agents, and based on the
financial statements of the Borrower, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Borrower, the Loan Parties, the Subsidiaries and
other Persons, its review of the Loan Documents, the legal opinions required to
be delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the transaction
contemplated hereby. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any other Lender or counsel to the Agent or
any of their respective officers, directors, employees and agents, and based on
such review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under the Loan Documents. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which
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may come into possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or other Affiliates. Each Lender
acknowledges that the Agent's legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.
Section 11.7. Indemnification of Agent.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so)
pro rata in accordance with such Lender's respective Commitment Percentage, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent (in its capacity as Agent but not as a Lender) in any way
relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Agent under the Loan
Documents (collectively, "Indemnifiable Amounts"); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent resulting from the Agent's gross negligence or willful misconduct or if
the Agent fails to follow the written direction of the Requisite Lenders unless
such failure is pursuant to the reasonable advice of counsel of which the
Lenders have received notice. Without limiting the generality of the foregoing
but subject to the preceding proviso, each Lender agrees to reimburse the Agent
(to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) promptly upon demand for its ratable share
of any out-of-pocket expenses (including counsel fees of the counsel(s) of the
Agent's own choosing) incurred by the Agent in connection with the preparation,
negotiation, execution, or enforcement of, or legal advice with respect to the
rights or responsibilities of the parties under, the Loan Documents, any suit or
action brought by the Agent to enforce the terms of the Loan Documents and/or
collect any Obligations, any "lender liability" suit or claim brought against
the Agent and/or the Lenders, and any claim or suit brought against the Agent
and/or the Lenders arising under any Environmental Laws. Such out-of-pocket
expenses (including counsel fees) shall be advanced by the Lenders on the
request of the Agent notwithstanding any claim or assertion that the Agent is
not entitled to indemnification hereunder upon receipt of an undertaking by the
Agent that the Agent will reimburse the Lenders if it is actually and finally
determined by a court of competent jurisdiction that the Agent is not so
entitled to indemnification. The agreements in this Section shall survive the
payment of the Loans and all other amounts payable hereunder or under the other
Loan Documents and the termination of this Agreement. If the Borrower shall
reimburse the Agent for any Indemnifiable Amount following payment by any Lender
to the Agent in respect of such Indemnifiable Amount pursuant to this Section,
the Agent shall share such reimbursement on a ratable basis with each Lender
making any such payment.
Section 11.8. Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. The Agent may be
removed as Agent under the Loan Documents for good cause by all of the Lenders
(other than the Lender then acting as the Agent) upon 30 days' prior notice.
Upon any such resignation or removal, the Requisite Lenders (other than the
Lender then acting as Agent, in the case of the removal of the Agent under the
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immediately preceding sentence) shall have the right to appoint a successor
Agent which appointment shall, provided no Default or Event of Default shall
have occurred and be continuing, be subject to the Borrower's approval, which
approval shall not be unreasonably withheld or delayed (except that the Borrower
shall, in all events, be deemed to have approved each Lender and its affiliates
as a successor Agent). If no successor Agent shall have been so appointed in
accordance with the immediately preceding sentence, and shall have accepted such
appointment, within 30 days after the resigning Agent's giving of notice of
resignation or the Lenders' removal of the resigning Agent, then the resigning
or removed Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a Lender, if any Lender shall be willing to serve, and otherwise shall
be a commercial bank having total combined assets of at least $50,000,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Loan
Documents. After any Agent's resignation or removal hereunder as Agent, the
provisions of this Article XI. shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under the Loan
Documents.
Section 11.9. Titled Agents.
Each of the Titled Agents in each such respective capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, nor any duties as an
agent hereunder for the Lenders. The titles of "Lead Arranger", "Co-Lead
Arranger", "Syndication Agent" and "Documentation Agent" are solely honorific
and imply no fiduciary responsibility on the part of the Titled Agents to the
Agent, the Borrower or any Lender and the use of such titles does not impose on
the Titled Agents any duties or obligations greater than those of any other
Lender or entitle the Titled Agents to any rights other than those to which any
other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attention: Treasurer
Telecopy Number: (617) 332-2261
Telephone Number: (617) 332-3990
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If to the Agent:
First Union National Bank
One First Union Center, TW-6
Charlotte, North Carolina 28288-0166
Attention: Rex E. Rudy
Telecopy Number: (704) 383-6205
Telephone Number: (704) 383-6506
If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Agent or any Lender under Article II. shall
be effective only when actually received. Neither the Agent nor any Lender shall
incur any liability to the Borrower (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.
Section 12.2. Expenses.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses and
travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel
to the Agent, (b) to pay or reimburse the Agent and the Lenders for all their
costs and expenses incurred in connection with the enforcement or preservation
of any rights under the Loan Documents, including the reasonable fees and
disbursements of their respective counsel (including the allocated fees and
expenses of in-house counsel) and any payments in indemnification or otherwise
payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay,
and indemnify and hold harmless the Agent and the Lenders from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise
and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to the
extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent and the Lenders for all their costs and expenses incurred in
connection with any bankruptcy or other proceeding of the type described in
Sections 10.1.(f) or 10.1.(g), including the reasonable fees
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and disbursements of counsel to the Agent and any Lender, whether such fees and
expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding. If the
Borrower shall fail to pay any amounts required to be paid by it pursuant to
this Section, the Agent and/or the Lenders may pay such amounts on behalf of the
Borrower and either deem the same to be Loans outstanding hereunder or otherwise
Obligations owing hereunder.
Section 12.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time during the continuance of an Event of
Default, without prior notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender or Participant
subject to receipt of the prior written consent of the Agent exercised in its
sole discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 10.2., and although such obligations shall be contingent or unmatured.
Promptly following any such set-off the Agent shall notify the Borrower thereof
and of the application of such set-off, provided that the failure to give such
notice shall not invalidate such set-off.
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY
REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG
THE BORROWER, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS
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AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT
OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH OF THE
LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
Section 12.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement without the prior written consent
of all Lenders and any such assignment or other transfer to which all of the
Lenders have not so consented shall be null and void.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest, (ii) no Lender may grant a participating interest in its Commitment,
or if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in an amount less than $5,000,000 and (iii) after
giving effect to any such participation by a Lender, the amount of its
Commitment, or if the Commitments have been terminated, the aggregate
outstanding principal balance of Notes held by it, in which it has not granted
any participating interests must be equal to $5,000,000 and integral multiples
of $1,000,000 in excess thereof. Except as otherwise provided in Section 12.3.,
no Participant shall have any rights or benefits under this Agreement or any
other Loan Document. In the event of any such grant by a Lender of a
participating interest to a Participant, such Lender shall remain responsible
for the performance of its obligations
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hereunder, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may
grant such a participating interest shall provide that such Lender shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided, however,
such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase, or extend the term or extend the time
or waive any requirement for the reduction or termination of, such Lender's
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the Loans or portions thereof owing to such Lender, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon or (v) release any Guarantor (except as otherwise permitted
under Section 7.12.(b)). An assignment or other transfer which is not permitted
by subsection (d) or (e) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (c). The selling Lender shall notify the Agent and the
Borrower of the sale of any participation hereunder and, if requested by the
Agent, certify to the Agent that such participation is permitted hereunder.
(d) Any Lender may with the prior written consent of the Agent and, so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower (which consent, in each case, shall not be unreasonably withheld),
assign to one or more Eligible Assignees (each an "Assignee") all or a portion
of its Commitment and its other rights and obligations under this Agreement and
the Notes; provided, however, (i) no such consent by the Borrower shall be
required in the case of any assignment to another Lender or any affiliate of
such Lender or another Lender and no such consent by the Agent shall be required
in the case of any assignment by a Lender to any affiliate of such Lender; (ii)
any partial assignment shall be in an amount at least equal to $5,000,000 and
integral multiples of $1,000,000 in excess thereof and after giving effect to
such assignment the assigning Lender retains a Commitment, or if the Commitments
have been terminated, holds Notes having an aggregate outstanding principal
balance, of at least $5,000,000 and integral multiples of $1,000,000 in excess
thereof; (iii) each such assignment shall be effected by means of an Assignment
and Acceptance Agreement; and (iv) after giving effect to any such assignment by
the Lender then acting as Agent, such Lender shall retain a Commitment greater
than or equal to the lesser of (x) the Commitment of such Lender as of the
Agreement Date (or the date such Lender first became a party to this Agreement )
or (y) the Commitment of any other Lender (other than any Lender whose
Commitment has increased as a result of a merger or other combination with
another Lender). Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
deemed to be a Lender party to this Agreement as of the effective date of the
Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such Assignment and
Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (d), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that new Notes are issued to the
Assignee and such transferor Lender, as appropriate. In connection with any such
assignment, the transferor Lender
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shall pay to the Agent an administrative fee for processing such assignment in
the amount of $3,500.
(e) Any Lender (each, a "Designating Lender") may at any time while the
Borrower has been assigned an Investment Grade Rating from either S&P or Moody's
designate one Designated Lender to fund Bid Rate Loans on behalf of such
Designating Lender subject to the terms of this subsection (e) and the
provisions in the immediately preceding subsections (c) and (d) shall not apply
to such designation. No Lender may designate more than one Designated Lender.
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 Lender, the Agent will accept such
Designation Agreement and give prompt notice thereof to the Borrower, whereupon
(i) the Borrower shall execute and deliver to the Designating Lender a
Designated Lender Note payable to the order of the Designated Lender, (ii) from
and after the effective date specified in the Designation Agreement, the
Designated Lender shall become a party to this Agreement with a right to make
Bid Rate Loans on behalf of its Designating Lender pursuant to Section 2.2.
after the Borrower has accepted a Bid Rate Loan (or portion thereof) of the
Designating Lender, and (iii) the Designated Lender 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 Lender which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable; provided, however, that regardless of such designation and assumption
by the Designated Lender, the Designating Lender shall be and remain obligated
to the Borrower, the Agent and the Lenders for each and every of the obligations
of the Designating Lender and its related Designated Lender with respect to this
Agreement, including, without limitation, any indemnification obligations under
Section 11.7. and any sums otherwise payable to the Borrower by the Designated
Lender. Each Designating Lender shall serve as the administrative agent of the
Designated Lender and shall on behalf of, and to the exclusion of, the
Designated Lender: (i) receive any and all payments made for the benefit of the
Designated Lender 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 Lender and shall not be signed by the Designated Lender
on its own behalf and shall be binding on the Designated Lender to the same
extent as if signed by the Designated Lender on its own behalf. The Borrower,
the Agent and the Lenders may rely thereon without any requirement that the
Designated Lender sign or acknowledge the same. No Designated Lender 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 Lender. The Borrower, the Lenders and the Agent each
hereby agrees that it will not institute against any Designated Lender or join
any other Person in instituting against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, until the later to occur of (x) one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Designated Lender and (y) the Termination Date.
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(f) The Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The Agent shall
give each Lender and the Borrower notice of the assignment by any Lender of its
rights as contemplated by this Section. 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 Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(h) A Lender may furnish any information concerning the Borrower, any
other Loan Party or any of their respective Subsidiaries in the possession of
such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants) subject to compliance with Section 12.8.
(i) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(j) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of,
or filings in respect of, any Loan or Note under the Securities Act or any other
securities laws of the United States of America or of any other jurisdiction.
Section 12.6. Amendments.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or any other Loan Document
to be given by the Lenders may be given, and any term of this Agreement or of
any other Loan Document may be amended, and the performance or observance by the
Borrower or any other Loan Party or any Subsidiary of any terms of this
Agreement or such other Loan Document or the continuance of any Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Requisite Lenders
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(and, in the case of an amendment to any Loan Document, the written consent of
the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders (or the Agent at the
written direction of the Lenders), do any of the following: (i) increase the
Commitments of the Lenders (except as contemplated by Section 2.16.) or subject
the Lenders to any additional obligations; (ii) reduce the principal of, or
interest rates that have accrued or that will be charged on the outstanding
principal amount of, any Loans or Fees or other Obligations; (iii) reduce the
amount of any Fees payable hereunder; (iv) postpone any date fixed for any
payment of any principal of, or interest on, any Loans or any other Obligations,
or extend the expiration date of any Letter of Credit beyond the Termination
Date; (v) change the Commitment Percentages (except as a result of any increase
in the aggregate amount of the Commitments contemplated by Section 2.16.,
3.11.(b) or 4.5.) or amend or otherwise modify the provisions of Section 3.2.;
(vi) amend Section 9.1.(e) or waive any Default or Event of Default occurring
under Section 10.1.(c) resulting from a violation of such Section; (vii) amend
the definition of "Unencumbered Asset Value" (or any of the definitions used in
such definition or the percentages or rates used in the calculation thereof);
(viii) modify the definition of the term "Requisite Lenders" or, except as
otherwise provided in the immediately following clause (x), modify in any other
manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
including without limitation, any modification of this Section if such
modification would have such effect; (ix) release any Guarantor from its
obligations under the Guaranty (except as otherwise permitted under Section
7.12.(b)); or (x) amend or otherwise modify the provisions of Section 2.15.(a).
In addition, no amendment, waiver or consent shall, unless in writing, and
signed by the Supermajority Lenders (or the Agent at the written direction of
the Supermajority Lenders), do any of the following: (x) amend or otherwise
modify the provisions of, or waive any Event of Default occurring under, Section
10.1.(m) or (y) modify the definition of the term "Supermajority Lenders".
Further, no amendment, waiver or consent unless in writing and signed by the
Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Agent under this Agreement or any of
the other Loan Documents. Any amendment, waiver or consent relating to Section
2.3. or the obligations of the Swingline Lender under this Agreement or any
other Loan Document shall, in addition to the Lenders required hereinabove to
take such action, require the written consent of the Swingline Lender. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon and any amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose set forth therein. 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. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances.
Section 12.7. Nonliability of Agent and Lenders.
The relationship between the Borrower and the Lenders and the Agent
shall be solely that of borrower and lender. Neither the Agent nor any Lender
shall have any fiduciary responsibilities to the Borrower and no provision in
this Agreement or in any of the other Loan Documents, and no course of dealing
between or among any of the parties hereto, shall be deemed to create any
fiduciary duty owing by the Agent or any Lender to any Lender, the Borrower, any
Subsidiary or any other Loan Party. Neither the Agent nor any Lender undertakes
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any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
Section 12.8. Confidentiality.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
requested by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required or requested by any Governmental Authority or representative thereof or
pursuant to legal process or in connection with any legal proceedings; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) after the happening and during the continuance of an Event of
Default, to any other Person, in connection with the exercise by the Agent or
the Lenders of rights hereunder or under any of the other Loan Documents; and
(f) to the extent such information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the Agent or
any Lender on a nonconfidential basis from a source other than the Borrower or
any Affiliate.
Section 12.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith, but excluding losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses indemnification in respect of
which is specifically covered by Section 3.12. or 4.1. or expressly excluded
from the coverage of such Sections) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any
Loans or issuance of Letters of Credit hereunder; (iii) any actual or proposed
use by the Borrower of the proceeds of the Loans or Letters of Credit; (iv) the
Agent's or any Lender's entering into this Agreement; (v) the fact that the
Agent and the Lenders have established the credit facility evidenced hereby in
favor of the Borrower; (vi) the fact that the Agent and the Lenders are
creditors of the Borrower and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of the Borrower
and the Subsidiaries; (vii) the fact that the Agent
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and the Lenders are material creditors of the Borrower and are alleged to
influence directly or indirectly the business decisions or affairs of the
Borrower and the Subsidiaries or their financial condition; (viii) the exercise
of any right or remedy the Agent or the Lenders may have under this Agreement or
the other Loan Documents; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for any acts or omissions of such
Indemnified Party in connection with matters described in this clause (viii)
that constitute gross negligence or willful misconduct; or (ix) any violation or
non-compliance by the Borrower or any Subsidiary of any Applicable Law
(including any Environmental Law) including, but not limited to, any Indemnity
Proceeding commenced by (A) the Internal Revenue Service or state taxing
authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the Borrower or its Subsidiaries (or its respective properties) (or the Agent
and/or the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnified
Proceeding covered by this Section and, as provided above, all costs and
expenses incurred by such Indemnified Party shall be reimbursed by the Borrower.
No action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii)
the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to
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reimburse such Indemnified Party for any amount paid by such Indemnified Party
with respect to such Indemnified Proceeding, such Indemnified Party shall not
settle or compromise any such Indemnified Proceeding without the prior written
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed).
(f) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full in cash
of the Obligations, and are in addition to, and not in substitution of, any
other of their obligations set forth in this Agreement or any other Loan
Document to which it is a party.
Section 12.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
all Letters of Credit have terminated, (c) none of the Lenders nor the Swingline
Lender is obligated any longer under this Agreement to make any Loans and (d)
all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Agent, the Lenders and the Swingline
Lender are entitled under the provisions of Sections 3.12., 4.1., 4.4., 11.7.,
12.2. and 12.9. and any other provision of this Agreement and the other Loan
Documents, and the provisions of Section 12.4., shall continue in full force and
effect and shall protect the Agent, the Lenders and the Swingline Lender (i)
notwithstanding any termination of this Agreement, or of the other Loan
Documents, against events arising after such termination as well as before and
(ii) at all times after any such party ceases to be a party to this Agreement
with respect to all matters and events existing on or prior to the date such
party ceased to be a party to this Agreement.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 12.13. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts,
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each of which when so executed and delivered shall be deemed an original, but
all of which counterparts together shall constitute but one and the same
instrument.
Section 12.14. Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
Section 12.15. Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to sue
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. The Borrower hereby waives, releases, and agrees
not to sue the Agent or any Lender or any of the Agent's or any Lender's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
Section 12.16. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto and supersede
any and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and thereof and
may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no
oral agreements among the parties hereto.
Section 12.17. Construction.
The Agent, the Borrower and each Lender acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Documents with its legal
counsel and that this Agreement and the other Loan Documents shall be construed
as if jointly drafted by the Agent, the Borrower and each Lender.
SECTION 12.18. LIABILITY OF TRUSTEES, ETC.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE AS FOLLOWS:
THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING THE
BORROWER, DATED JULY 1, 1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE
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OF THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT
THE NAME "HRPT PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE BORROWER SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, THE BORROWER. ALL PERSONS DEALING WITH THE BORROWER, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE BORROWER FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION. THE PROVISIONS OF THIS SECTION SHALL NOT LIMIT
ANY OBLIGATIONS OF ANY LOAN PARTY OTHER THAN THE BORROWER.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
Borrower:
HRPT Properties Trust
By: /s/ John C. Popeo
Name: John C. Popeo
Title: Treasurer, Secretary, CFO
Attest: /s/ Jennifer B. Clark
Name: Jennifer B. Clark
Title: Senior Vice President/Assistant
Secretary
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
First Union National Bank, as Agent, as a Lender
and as Swingline Lender
By: /s/ Rex E. Rudy
Name: Rex E. Rudy
Title: Vice President
Commitment Amount:
$70,000,000
Lending Office (all Types of Loans):
First Union National Bank
REIT Banking Group
One First Union Center, NC5604
301 South College Street
Charlotte, North Carolina 28288
Attn: Rex E. Rudy
Telecopier: (704) 383-6205
Telephone: (704) 383-6506
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
FLEET NATIONAL BANK
By: /s/ James B. McLaughlin
Name: James B. McLaughlin
Title: Director
Commitment Amount:
$63,000,000
Lending Office (all Types of Loans):
Fleet National Bank
100 Federal Street
MA DE 10009A
Boston, MA 02110
Attn: James B. McLaughlin
Telecopier: 617.434.0645
Telephone: 617.434.1448
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Douglas S. Novitch
Name: Douglas S. Novitch
Title: Vice President
Commitment Amount:
$60,000,000
Lending Office (all Types of Loans):
Wells Fargo Bank, National Association
121 High Street, 5th Floor
Boston, MA 02110
Attn: Douglas S. Novitch
Telecopier: 617-772-9337
Telephone: 617-574-6307
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Christian Berry /s/ David Buettner
Name: Christian Berry David Buettner
Title: Assistant Vice President Assistant Vice President
Commitment Amount:
$60,000,000
Lending Office (all Types of Loans):
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281
Attn: Douglas P. Traynor
Telecopier: 212-266-7565
Telephone: 212-266-7569
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
THE BANK OF NEW YORK
By: /s/ David V. Fowler
Name: David V. Fowler
Title: Vice President
Commitment Amount:
$35,000,000
Lending Office (all Types of Loans):
The Bank of New York
One Wall Street, 21st Floor
New York, New York 10286
Attn: David V. Fowler
Telecopier: 212-809-9526
Telephone: 212-635-8113
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
AMSOUTH BANK
By: /s/ Katherine M. Allen
Name: Katherine M. Allen
Title: Vice President
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
AmSouth Bank
1900 5th Avenue North, 9th Floor
Birmingham, AL 35203
Attn: Crystal Cassels
Telecopier: 205-326-4075
Telephone: 205-801-0622
[Signatures Continued on Next Page]
-102-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Daniel R. Ouellette
Name: Daniel R. Ouellette
Title: Senior Vice President
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
Citizens Bank
28 State Street, 14th Floor
Boston, Massachusetts 02109
Attn: Daniel R. Ouellette
Telecopier: 617-725-5695
Telephone: 617-725-5602
[Signatures Continued on Next Page]
-103-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
SUNTRUST BANK
By: /s/ Blake K. Thompson
Name: Blake K. Thompson
Title: Vice President
Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
SunTrust Bank
8245 Boone Blvd
Suite 820
Vienna VA 22182
Attn: Glenda Charles
Telecopier: 703-902-9245/9190
Telephone: 703-902-9183
[Signatures Continued on Next Page]
-104-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: /s/ Niamh O'Flynn
Name: Niamh O'Flynn
Title: Manager
By: /s/Kieran Rockett
Name: Kieran Rockett
Title: Authorised Signatory
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans):
The Governor and Company of the Bank of Ireland
LaTouche House
International Financial Services Centre
Dublin 1, Ireland
Attn: Niamh O'Flynn
Telecopier: 011-353-1-8290129
Telephone: 011-353-1-6093491
[Signatures Continued on Next Page]
-105-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
CHEVY CHASE BANK
By: /s/ Eric A. Lawrence
Name: Eric A. Lawrence
Title: Vice President
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans):
Chevy Chase Bank
8401 Connecticut Avenue
Chevy Chase MD 20815
Attn: Eric A. Lawrence
Telecopier: 301-986-7516
Telephone: 301-986-7216
[Signatures Continued on Next Page]
-106-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
EASTERN BANK
By: /s/ Richard C. Muraida
Name: Richard C. Muraida
Title: Vice President
Commitment Amount:
$12,000,000
Lending Office (all Types of Loans):
Eastern Bank
53 State Street, 13th Floor
Boston MA 02109
Attn: Richard Muraida
Telecopier: 617-263-2522
Telephone: 617-263-2458
[Signatures Continued on Next Page]
-107-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
NATIONAL BANK OF EGYPT, NEW YORK BRANCH
By: /s/ Carmelo L. Foti
Name: Carmelo L. Foti
Title: Vice President
By: /s/ Rami El-Rifai
Name: Rami El-Rifai
Title: Assistant Vice President
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans):
Nation Bank of Egypt
New York Branch
40 East 52nd Street
New York, New York 10022
Attn: Vernon Hatton
Telecopier: 212-755-6944
Telephone: 212-326-8000
[Signatures Continued on Next Page]
-108-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
RZB FINANCE LLC
By: /s/John A. Valiska
Name: John A. Valiska
Title: Vice President
By: /s/ Pearl Geffers
Name: Pearl Geffers
Title: Firs Vice President
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans):
RZB Finance LLC
1133 Avenue of the Americas - 16th Floor
New York, New York 10030
Attn: Peter Siggia
Telecopier: (212) 391-9670
Telephone: (212) 845-8340
[Signatures Continued on Next Page]
-109-
[Signature Page to Credit Agreement dated as of
April 30, 2001 with HRPT Properties Trust]
BANK LEUMI USA
By: /s/ Charles C. D'Amico
Name: Charles C. D'Amico
Title: Vice President
Commitment Amount:
$5,000,000
Lending Office (all Types of Loans):
Bank Leumi USA
562 Fifth Avenue
New York NY 10036
Attn: Charles C. D'Amico
Telecopier: 212-626-1239
Telephone: 212-626-1220
-110-
SCHEDULE 1.1(A)
List of Loan Parties
1735 Market Street Properties Trust
Causeway Holdings, Inc.
Health and Retirement Properties International, Inc.
Hub Acquisition Trust
Hub LA Properties Trust
Hub Management, Inc.
Hub Properties Trust
Hub Realty College Park I, LLC
Hub Realty College Park, Inc.
Hub Realty Funding, Inc.
Hub Realty Golden, Inc.
Hub Realty Kansas City, Inc.
Hub RI Properties Trust
Hub Woodmont Investment Trust
Hub Woodmont Limited Liability Company
Indemnity Collection Corporation
Nine Penn Center Properties Trust
Research Park Properties Trust
Rosedale Properties Trust
HRPT Medical Buildings Realty Trust
47 Harvard Street Real Estate Trust
145 University Avenue Realty Trust
MOB Realty Trust
4 Maguire Road Realty Trust
Putnam Place Realty Trust
Hub MA Realty Trust
Hub LA Limited Partnership
Nine Penn Center Associates, L.P.
SCHEDULE 6.1(b)
Ownership Structure
Part I (Subsidiaries)
Causeway Holdings, Inc. - (Massachusetts)
HRPT Properties Trust owns 100 shares of common stock, $.01 par value,
representing 100% ownership.
Health and Retirement Properties International, Inc. - (Delaware)
HRPT Properties Trust owns 100 shares of common stock, $.01 par value,
representing 100% ownership.
Hub Realty Golden, Inc. - (Delaware)
Hub Acquisition Trust owns 1 share of common stock, $.01 par value,
representing 100% ownership.
Hub Realty Kansas City, Inc. - (Delaware)
Hub Acquisition Trust owns 1 share of common stock, $.01 par value,
representing 100% ownership.
Hub RI Properties Trust - (Maryland)
HRPT Properties Trust owns 1,000 shares of beneficial interest, $.01
par value, representing 100% ownership.
Hub Woodmont Investment Trust - (Maryland)
Hub Properties Trust owns 100 shares of beneficial interest, $.01 par
value, representing 100% ownership interest.
Hub Woodmont Limited Liability Company - (Delaware)
Hub Woodmont Investment Trust - $9,000,000 capital account - 99%
ownership Blackridge Woodmont LLC - $320,500 capital account - 1%
ownership
Indemnity Collection Corporation - (Delaware)
HRPT Properties Trust owns 100 shares of common stock, $.01 par value,
representing 100% ownership.
Rosedale Properties Trust - (Maryland)
Hub Properties Trust owns 1,000 shares of beneficial interest, $.01 par
value, representing 100% ownership.
47 Harvard Street Real Estate Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
145 University Avenue Realty Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
4 Maguire Road Realty Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
Putnam Place Realty Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
Hub MA Realty Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
Hub Realty College Park I, LLC - (Maryland)
Hub Management, Inc. - 50% membership interest.
Hub Realty College Park, Inc. - 50% membership interest.
Hub Management, Inc. - (Delaware)
Hub Acquisition Trust owns 1,000 shares of common stock, $.01 par
value, representing 100% ownership.
Hub Realty College Park, Inc. - (Delaware)
Hub Acquisition Trust owns 1 share of common stock, $.01 par value,
representing 100% ownership.
Material Subsidiaries
1735 Market Street Properties Trust - (Maryland)
Hub Properties Trust owns 100 shares of beneficial interest, $.01 par
value, representing 100% ownership.
Hub Acquisition Trust - (Maryland)
HRPT Properties Trust owns 1,000 shares of beneficial interest, $.01
par value, representing 100% ownership.
Hub LA Properties Trust - (Maryland)
Hub Properties Trust owns 1,000 shares of beneficial interest, $.01 par
value, representing 100% ownership.
Hub Properties Trust - (Maryland)
HRPT Properties Trust owns 1,000 shares of beneficial interest, $.01
par value, representing 100% ownership.
Hub Realty Funding, Inc.- (Delaware)
Hub Acquisition Trust owns 1 share of common stock, $.01 par value,
representing 100% ownership.
Nine Penn Center Properties Trust - (Maryland)
Hub Properties Trust owns 100 shares of beneficial interest, $.01 par
value, representing 100% ownership.
Research Park Properties Trust - (Maryland)
HRPT Properties Trust owns 100 shares of beneficial interest, $.01 par
value, representing 100% ownership.
HRPT Medical Buildings Realty Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
MOB Realty Trust (Nominee Trust - Massachusetts)
Hub Properties Trust is the 100% beneficiary.
Hub LA Limited Partnership (98%) - (Delaware)
Hub Properties Trust - 98% ownership interest
Hub LA Properties Trust - 1% ownership interest
Medical Office Buildings Limited - 1% ownership interest
Nine Penn Center Associates, L.P. - (Pennsylvania)
Hub Properties Trust - 88% ownership interest.
Nine Penn Center Properties Trust - 1% ownership interest.
Transportation Associates - 11% ownership interest.
Excluded Subsidiaries
Rosedale Properties, Inc. - (Delaware)
Rosedale Properties Trust owns 100 shares of common stock, $.01 par
value, representing 100% ownership.
Quarry Lake Properties Trust - (Maryland)
Hub Properties Trust owns 1,000 common shares of beneficial interest,
$.01 par value, representing 100% ownership.
Hub Realty Richland, Inc. - (Delaware)
Hub Acquisition Trust owns 1 share of common stock, $.01 par value,
representing 100% ownership.
Hub Realty Buffalo, Inc. - (Delaware)
Hub Acquisition Trust owns 1 share of common stock, $.01 par value,
representing 100% ownership.
Rosedale Properties Limited Liability Company - (Delaware)
Hub Properties Trust - 99%
Rosedale Properties, Inc. - 1%
Park San Antonio Properties Trust - (Maryland)
Hub Properties Trust owns 1,000 shares of beneficial interest, $.01 par
value, representing 100% ownership.
Cedars LA LLC - (Delaware)
Hub LA Limited Partnership - 100% ownership interest
SP Holding Property Trust - (Maryland)
Hub Properties Trust - 100%
Franklin Plaza Property Trust - (Maryland)
SP Holding Property Trust - 100%
Lakewood Property Trust - (Maryland)
SP Holding Property Trust - 100% ownership interest
Herald Square LLC - (Delaware)
SP Holding Property Trust - 100% ownership interest
Indiana Avenue LLC - (Delaware)
SP Holding Property Trust - 100% ownership interest
Bridgepoint Property Trust - (Maryland)
SP Holding Property Trust - 100% ownership interest
1600 Market Street Property Trust - (Maryland)
SP Holding Property Trust - 100% ownership interest
Rosedale Corporate Plaza Condominium, Inc. - (Minnesota)
Rosedale Properties LLC owns 5 condo units representing 89% ownership.
Servico Roseville, Inc. owns 1 condo unit representing 11% ownership.]
Part II (Unconsolidated Affiliates)
SCHEDULE 6.1(f)
Title To Properties; Liens
Part I (Real Property)
Owner Property City State
----- -------- ---- -----
Hub Acquisition Trust 4560 Viewridge Avenue San Diego CA
Hub Acquisition Trust 55 North Robinson Oklahoma City OK
Hub Acquisition Trust 2029 Stonewall Jackson Dr. Falling Waters WV
Hub Acquisition Trust 5051 Rodeo Road Los Angeles CA
Hub Acquisition Trust 330 Second Avenue Minneapolis MN
Hub Acquisition Trust 701 Clay Street Waco TX
Hub Acquisition Trust 4181 Ruffin Road San Diego CA
Hub Realty Buffalo, Inc. 130-138 Delaware Avenue Buffalo NY
Hub Realty Golden, Inc. 16194 West 45th Street Golden CO
Hub Realty College Park I, 4700 River Road Riverdale MD
LLC
Hub Realty Kansas City, Inc. 4241 N.E. 34th Street Kansas City MO
Hub Realty Funding, Inc. 25 Twelfth Street Petersburg AK
Hub Realty Funding, Inc. 711 14th Avenue Safford AZ
Hub Realty Funding, Inc. 220 E. Bryan Street Savannah GA
Hub Realty Funding, Inc. 435 Montano Boulevard Albuquerque NM
Hub Realty Funding, Inc. 9797 Aero Drive San Diego CA
Hub Realty Funding, Inc. 5353 North Yellowstone Dr. Cheyenne WY
Hub Realty Funding, Inc. 1474 Rodeo Road Sante Fe NM
Hub Realty Funding, Inc. 820 West Diamond Avenue Gaithersburg MD
Hub Realty Funding, Inc. 20400 Century Boulevard Germantown MD
Hub Realty Funding, Inc. 6710 Oxon Hill Drive Oxon Hill MD
Hub Realty Funding, Inc. 5600 Columbia Pike Falls Church VA
Hub Realty Funding, Inc. 20 Massachusetts Avenue Washington DC
Hub Realty Funding, Inc. 625 Indiana Avenue Washington DC
Hub Realty Funding, Inc. 400 State Avenue Kansas City KS
Hub Realty Funding, Inc. 201 Indianola Avenue Phoenix AZ
Hub Realty Funding, Inc. 3285 E. Hemisphere Loop Tucson AZ
Hub Realty Richland, Inc. 2420 & 2430 Stevens Ctr Pl Richland WA
Causeway Holdings, Inc. 251 Causeway Street Boston MA
Hub Woodmont Limited 1401 Rockville Pike-Wdmt Rockville MD
Liability Company
Cedars LA LLC 8631 West Third Avenue Los Angeles CA
(2 buildings)
Lakewood Property Trust 7600 Capital of Texas Austin TX
Highway
Owner Property City State
----- -------- ---- -----
Hub RI Properties Trust 701 George Washington Hw Lincoln RI
Park San Antonio Properties 812 San Antonio Park Austin TX
Trust
Research Park Properties Research Park Austin TX
Trust (includes Solectron Expan.)
Research Park Properties Research Park - Phase II Austin TX
Trust
Research Park Properties Research Park - Land Austin TX
Trust
Rosedale Properties Limited 2665 Long Lake Road Roseville MN
Liability Company
Hub Properties Trust 1145 19th Street NW Washington DC
Hub Properties Trust One Franklin Plaza Philadelphia PA
Hub Properties Trust 1250 H. Street N.W. Washington DC
Hub Properties Trust 4001 Fair Ridge Drive Fairfax VA
Hub Properties Trust 3030, 3040 and 3050 San Diego CA
Sci Pk. Rd.
Hub Properties Trust 5555, 5601, 5626 and San Diego CA
5627 Oberlin Drive
Hub Properties Trust 443 Gulph Road King of Prussia PA
Hub Properties Trust 1035 Virginia Drive Ft. Washington PA
Hub Properties Trust 515 Penn Ave. Ft. Washington PA
Hub Properties Trust 525 Virginia Drive Ft. Washington PA
Hub Properties Trust 723 Drescher Road Horsham PA
Hub Properties Trust 830 E. Potomac Circle Aurora CO
Hub Properties Trust 100 South Charles St., Baltimore MD
Tower II
Hub Properties Trust 710 North Euclid, Anaheim CA
Bldg. 1 of 3
Hub Properties Trust 1085 North Harbor, Anaheim CA
Bldg. 3 of 3
Hub Properties Trust 2141 K St., N.W. Washington DC
Hub Properties Trust 3043 Walton Road Plymouth Meeting PA
Hub Properties Trust 475 Virginia Drive Ft. Washington PA
Hub Properties Trust 6937 NIH - Founders Bldg. Austin TX
Hub Properties Trust 216 Mall Boulevard King of Prussia PA
Hub Properties Trust 210 Mall Boulevard King of Prussia PA
Hub Properties Trust 1911 Mills Avenue Orlando FL
Hub Properties Trust 1825 Mills Avenue Orlando FL
Hub Properties Trust 1925 N. Mills Avenue Orlando FL
Hub Properties Trust 5750 Centre Avenue Pittsburgh PA
Hub Properties Trust 1305 Corp. Ctr. Dr.-I/Shop Eagan MN
Owner Property City State
----- -------- ---- -----
Hub Properties Trust 2250 Pilot Knob Rd.-I/Shop Mendota Heights MN
Hub Properties Trust 4421 W. John Carpenter Irving TX
Fw-I/Shop
Hub Properties Trust 4770 Regent Blvd.-I/Shop Irving TX
Hub Properties Trust 8880 Queen Ave.-I/Shop Bloomington MN
Hub Properties Trust 2100 NW 82nd Ave.-I/Shop Miami FL
Hub Properties Trust 1111 W. 34th Street Austin TX
Hub Properties Trust 1600 Market Street Philadelphia PA
Hub Properties Trust Vorhees Ctr., 333 Laurel Oak Vorhees NJ
Hub Properties Trust Vorhees Ctr., 400 Laurel Oak Vorhees NJ
Hub Properties Trust Vorhees Ctr., 1000 Vorhees Vorhees NJ
Hub Properties Trust 35 Thorpe Ave. Wallingford CT
Hub Properties Trust Donahue Road Greenberg PA
Hub Properties Trust 5300 Kings Island Drive Mason OH
Hub Properties Trust 1534 Ridge Road East Irondequoit NY
Hub Properties Trust 6818 Austin Center Blvd. Austin TX
Hub Properties Trust 802 Delaware Ave. Wilmington DE
Hub Properties Trust 7-9 Vreeland Road Florham Park NJ
Hub Properties Trust 3330 North Washington Arlington VA
Blvd.
Hub Properties Trust 200 Jefferson Ave. Memphis TN
Hub Properties Trust 700 Cherington Parkway Pittsburgh PA
Hub Properties Trust Metro Exec. Ctr., Baltimore MD
4201 Patterson
Hub Properties Trust 580 Virginia Drive Ft. Washington PA
Hub Properties Trust 801 Barnes Road Wallingford CT
Hub Properties Trust 2800 Eisenhower Drive Alexandria VA
Hub Properties Trust 3000 Goffs Falls Road Manchester NH
Hub Properties Trust 1601 Rio Grande Austin TX
Hub Properties Trust 1525 Locust Street Philadelphia PA
Hub Properties Trust One Suffolk Square Islandia NY
Hub Properties Trust The Pavillion Mineola NY
200 Old County Road
Hub Properties Trust 110 W. Fayette Street Syracuse NY
Hub Properties Trust 7800 Shoal Creek Austin TX
Hub Properties Trust 1920 & 1930 Tempe AZ
University Drive
Hub Properties Trust 1001 Jefferson Plaza Wilmington DE
Hub Properties Trust Two Corporate Center Drive Melville NY
Hub Properties Trust 2444 West Las Phoenix AZ
Palmerita Drive
Hub Properties Trust 3737 Broadway San Antonio TX
Hub Properties Trust 8701 North Mopac Austin TX
Owner Property City State
----- -------- ---- -----
Hub Properties Trust 7100 Northland Circle Brooklyn Park MN
Hub Properties Trust 1000 Shelard Parkway St. Louis Park MN
Hub Properties Trust 4516 Seton Center Park Plymouth MN
Hub Properties Trust 525 Park Street St. Paul MN
Hub Properties Trust 4000 Old Court Road Pikesville MD
Hub Properties Trust 701 NE 10th Street Oklahoma City OK
Hub Properties Trust 8315 So. Walker Avenue Oklahoma City OK
Hub Properties Trust 200 N. Bryant Edmond OK
Hub Properties Trust 201 N. Garrett Elk City OK
Hub Properties Trust 600 National Avenue Midwest City OK
Hub Properties Trust 200-625 Corporate Center Moon Township PA
(6 Bldgs.)
Hub Properties Trust 1801 Randolph Road S.E. Albuquerque NM
(4 Bldgs.)
Hub Properties Trust 960 Harvest Drive (3 Bldgs.) Blue Bell PA
Hub Properties Trust 251 Salina Meadows Syracuse NY
Parkway
Hub Properties Trust 14026 and 14030 Chantilly VA
Thunderbolt
Hub Properties Trust 9800 Shelard Parkway Austin TX
Hub Properties Trust 3840 South Wadsworth Blvd. Lakewood CO
Hub Properties Trust 5790 Widewaters Parkway DeWitt NY
Quarry Lake Properties Trust 4545 Seton Center Park Austin TX
Bridgepoint Property Trust 6300 Bridgepoint Pkwy Austin TX
(5 Bldgs)
Nine Penn Center Associates 1735 Market Street Philadelphia PA
L.P.
HRPT Medical Buildings 1295 Boylston Street Boston MA
Realty Trust
HRPT Medical Buildings 109 Brookline Avenue Boston MA
Realty Trust
47 Harvard Street Real Estate 47 Harvard Street Westwood MA
Trust
University Avenue Real 145 University Avenue Westwood MA
Estate Trust
MOB Realty Trust 35 Milbury Street Auburn MA
MOB Realty Trust Cady Brook Plaza Charlton MA
MOB Realty Trust 370 Lunenburg Street Fitchburg MA
MOB Realty Trust 28 Grafton Common Worcester MA
MOB Realty Trust 165 Mill Street Leominster MA
MOB Realty Trust 108 Elm Street Worcester MA
MOB Realty Trust 176 West Street Worcester MA
MOB Realty Trust 338 Church Street Worcester MA
MOB Realty Trust 715 Pleasant Street Worcester MA
Owner Property City State
----- -------- ---- -----
MOB Realty Trust 405-407 Main Street Worcester MA
MOB Realty Trust 67 Hall Road Worcester MA
MOB Realty Trust 340 Thompson Road Worcester MA
MOB Realty Trust 106 East Main Street Worcester MA
MOB Realty Trust 112 East Main Street Worcester MA
MOB Realty Trust 135 Gold Star Blvd. Worcester MA
MOB Realty Trust 191 May Street Worcester MA
MOB Realty Trust 277 E. Mountain Street Worcester MA
MOB Realty Trust 425 N. Lake Avenue Worcester MA
MOB Realty Trust 630 Plantation Street Worcester MA
MOB Realty Trust 95 Lincoln Street Worcester MA
4 Maguire Road Realty Trust 4 Maguire Road Lexington MA
Putnam Place Realty Trust 859 Willard Street Quincy MA
Putnam Place Realty Trust 19-23 Granite Street Braintree MA
Hub MA Realty Trust 165 University Avenue Westwood MA
HRPT Properties Trust 15 No. Broadway White Plains NY
HRPT Properties Trust 6300 Eighth Avenue Brooklyn NY
Part II (Permitted Liens)
1. Mortgage by Hub Realty Buffalo, Inc. to and for the benefit of M&T Real
Estate, Inc. for the property located at 130-138 Delaware Ave.,
Buffalo, New York.
2. Mortgage by Hub Realty Richland, Inc. to and for the benefit of
Canadian Imperial Bank of Commerce for the property located at 2420 and
2430 Stevens Center Plaza, Richland, Wisconsin.
3. Open-End Leasehold Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, dated December 15, 2000, made by Franklin
Plaza Property Trust, as Mortgagor, to and for the benefit of Merrill
Lynch Mortgage Lending, Inc., as Mortgagee for the property located at
One Franklin Plaza, Philadelphia, Pennsylvania.
4. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Cedars LA LLC to
Lawyers Title Borrower for the benefit of Merrill Lynch Mortgage
Lending, Inc. for the property located at 8631 West Third Avenue, Los
Angeles, California.
5. Loan and Security Agreement, dated December 15, 2000, by and between
Cedars LA LLC, Herald Square LLC, Indiana Avenue LLC, Bridgeport
Property Trust, Lakewood Property Trust and 1600 Market Street Property
Trust, collectively as Borrowers, and Merrill Lynch Mortgage Lending,
Inc., as Lender.
6. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Lakewood Property
Trust in favor of William Z. Fairbanks, Jr. and for the benefit of
Merrill Lynch Mortgage Lending, Inc. for the property located at 7600
Capital of Texas Highway, Austin, Texas.
7. Mortgage by Park San Antonio Properties Trust to and for the benefit of
First Union National Bank for the property located at 812 San Antonio
Park, Austin, Texas.
8. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Herald Square LLC to
Lawyers Title Realty Services, Inc. for the benefit of Merrill Lynch
Mortgage Lending, Inc. for the property located at 1250 H. Street N.W.,
Washington, D.C.
9. Mortgage by Rosedale Properties LLC to and for the benefit of DLJ
Commercial Corp. for the property located at 2665 Long Lake Road,
Roseville, Minnesota.
10. Mortgage by Quarry Lake Properties Trust to and for the benefit of
Teachers Insurance and Annuity Association of America for the property
located at 4545 Seton Center Park, Austin, Texas.
11. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Bridgepoint Property
Trust in favor of William Z. Fairbanks, Jr. and for the benefit of
Merrill Lynch Mortgage Lending, Inc. for the property located at 6300
Bridgepoint Parkway, Austin, Texas.
12. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Indiana Avenue LLC to
Lawyers Title Realty Services, Inc. for the benefit of Merrill Lynch
Mortgage Lending, Inc. for the property located at 625 Indiana Avenue,
Washington, D.C.
13 Open-End Leasehold Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, dated December 15, 2000, made by 1600
Market Street Property Trust, as Mortgagor, to and for the benefit of
Merrill Lynch Mortgage Lending, Inc., as Mortgagee. for the property
located at 1600 Market Street, Philadelphia, Pennsylvania.
14. Loan and Security Agreement, dated December 15, 2000, entered into by
and between Franklin Plaza Property Trust, as Borrower and Merrill
Lynch Mortgage Lending, Inc., as Lender.
SCHEDULE 6.1(g)
Indebtedness and Guaranties
1. Indenture, dated July 9, 1997, by and between Borrower and State Street
Bank and Trust Company, as Trustee (Unsecured)
2. Supplemental Indenture No. 3, dated February 23, 1998, by and between
Borrower and State Street Bank and Trust Company, relating to 6.70%
Senior Notes due 2005 (Unsecured) ($100,000,000)
3. Supplemental Indenture No. 4, dated August 26, 1998, by and between
Borrower and State Street Bank and Trust Company, relating to 6.875%
Senior Notes due 2002 (Unsecured) ($160,000,000)
4. Supplemental Indenture No. 5, dated November 30, 1998, by and between
Borrower and State Street Bank and Trust Company, relating to 8.5%
Monthly Notes due 2013 (Unsecured) ($143,000,000)
5. Supplemental Indenture No. 6, dated March 24, 1999, by and between
Borrower and State Street Bank and Trust Company, relating to 7.875%
Monthly Notes due 2009 (Unsecured) ($90,000,000)
6. Supplemental Indenture No. 7, dated June 17, 1999, by and between
Borrower and State Street Bank and Trust Company, relating to 8.375%
Senior Notes due 2011 (Unsecured) ($65,000,000)
7. Supplemental Indenture No. 8, dated July 31, 2000, by and between
Borrower and State Street Bank and Trust Company, relating to 8.875%
Senior Notes due 2010 (Unsecured) ($30,000,000)
8. Supplemental Indenture No. 9, dated September 29, 2000, by and between
Borrower and State Street Bank and Trust Company, relating to 8.625%
Senior Notes due 2010 (Unsecured) ($20,000,000)
9. Indenture, dated as of December 18, 1997, by and between the Borrower
and State Street Bank and Trust Company, as Trustee (Unsecured)
10. Supplemental Indenture, dated as of December 18, 1997, by and between
the Borrower and State Street Bank and Trust Company, as Trustee,
relating to the Company's 6.75% Senior Notes due 2002. (Unsecured)
($150,000,000)
11. Mortgage by Hub Realty Buffalo, Inc. to and for the benefit of M&T Real
Estate, Inc. (Secured) ($10,152,703)
12. Mortgage by Hub Realty Richland, Inc. to and for the benefit of
Canadian Imperial Bank of Commerce. (Secured) ($11,269,850)
13. Open-End Leasehold Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, dated December 15, 2000, made by Franklin
Plaza Property Trust, as Mortgagor, to and for the benefit of Merrill
Lynch Mortgage Lending, Inc., as Mortgagee. (Secured) ($44,000,000)
14. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Cedars LA LLC to
Lawyers Title Borrower for the benefit of Merrill Lynch Mortgage
Lending, Inc. (Secured) ($72,829,000)
15. Loan and Security Agreement, dated December 15, 2000, by and between
Cedars LA LLC, Herald Square LLC, Indiana Avenue LLC, Bridgeport
Property Trust, Lakewood Property Trust and 1600 Market Street Property
Trust, collectively as Borrowers, and Merrill Lynch Mortgage Lending,
Inc., as Lender. (Secured)
16. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Lakewood Property
Trust in favor of William Z. Fairbanks, Jr. and for the benefit of
Merrill Lynch Mortgage Lending, Inc. (Secured) ($23,312,000)
17. Mortgage by Park San Antonio Properties Trust to and for the benefit of
First Union National Bank. (Secured) ($3,505,532)
18. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Herald Square LLC to
Lawyers Title Realty Services, Inc. for the benefit of Merrill Lynch
Mortgage Lending, Inc. (Secured) ($32,058,000)
19. Mortgage by Rosedale Properties LLC to and for the benefit of DLJ
Commercial Corp. (Secured) ($17,501,499)
20. Mortgage by Quarry Lake Properties Trust to and for the benefit of
Teachers. (Secured) ($10,933,964)
21. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Bridgepoint Property
Trust in favor of William Z. Fairbanks, Jr. and for the benefit of
Merrill Lynch Mortgage Lending, Inc. (Secured) ($45,342,000)
22. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated December 15, 2000, made by Indiana Avenue to
Lawyers Title Realty Services, Inc. for the benefit of Merrill Lynch
Mortgage Lending, Inc. (Secured) ($23,221,000)
23. Open-End Leasehold Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, dated December 15, 2000, made by 1600
Market Street Property
Trust, as Mortgagor, to and for the benefit of Merrill Lynch Mortgage
Lending, Inc., as Mortgagee. (Secured) ($62,238,000)
24. Exceptions to Non-Recourse Guaranty, dated December 15, 2000, entered
into by Hub Realty College Park I, LLC, as Guarantor, for the benefit
of Merrill Lynch Mortgage Lending, Inc., as Lender, in reference to the
$260,000,000 loan. (Secured)
25. Exceptions to Non-Recourse Guaranty, dated December 15, 2000, entered
by Hub Realty College Park I, LLC, as Guarantor, for the benefit of
Merrill Lynch Mortgage Lending, Inc., as Lender, in reference to the
$44,000,000 loan. (Secured)
26. Loan and Security Agreement, dated December 15, 2000, entered into by
and between Franklin Plaza Property Trust, as Borrower and Merrill
Lynch Mortgage Lending, Inc., as Lender. (Secured)
[Amounts stated above represent the unpaid principal balance as of 12/31/00]
SCHEDULE 6.1(h)
Material Contracts
1. Advisory Agreement by and between REIT Management & Research, Inc. and
the Borrower dated as of January 1, 1998.
2. Amendment No. 1 to Advisory Agreement between the Borrower and REIT
Management & Research, Inc. dated as of October 12, 1999.
3. Master Management Agreement by and between the Borrower and REIT
Management & Research, Inc., dated as of January 1, 1998.
4. Transaction Agreement between Senior Housing Properties Trust and the
Borrower, dated as of September 21, 1999.
5. Promissory Note in the amount of $260,000,000, dated December 15, 2000,
issued by Cedars LA LLC, Herald Square LLC, Indiana Avenue LLC,
Bridgepoint Property Trust, Lakewood Property Trust and 1600 Market
Street Property Trust, collectively as Borrowers, to Merrill Lynch
Mortgage Lending, Inc., as Lender.
6. Promissory Note in the amount of $44,000,000, dated December 15, 2000,
issued by Franklin Plaza Property Trust, as Borrower, to Merrill Lynch
Mortgage Lending, Inc., as Lender.
7. Agreements listed on Schedule 6.1(g).
[Certain of the foregoing may not constitute Material Contracts but
are provided for informational purposes.]
SCHEDULE 6.1(i)
Litigation
None
SCHEDULE 6.1(k)
Financial Statements
None, other than declared and unpaid dividends on the Borrower's common shares
of beneficial interest and preferred shares of beneficial interests.
SCHEDULE 6.1(y)
List of Unencumbered Assets
Part I (Unencumbered Assets)
Street City St. Properties
- ----------------------------------------------------------------------------------------------------------
Real Estate:
Sorrento Valley, Oberlin Dr San Diego CA 4
Torrey Pines, Sci Pk Rd San Diego CA 3
Fair Oaks Fairfax VA 1
1145 19th Street Washington DC 1
1295 Boylston Street Boston MA 1
251 Causeway Street Boston MA 1
109 Brookline Avenue Boston MA 1
443 Gulph Road King of Prussia PA 1
1035 Virginia Drive Ft. Washington PA 1
100 South Charles St, Twr II Baltimore MD 1
2141 K St, N.W. Washington DC 1
3043 Walton Rd Plymouth Meeting PA 1
475 Virginia Drive Ft. Washington PA 1
6937 N IH - Founders Bldg Austin TX 1
216 Mall Boulevard King of Prussia PA 1
1401 Rockville Pike-Wdmt Rockville MD 1
5750 Centre Ave Pittsburgh PA 1
Bailey Square Austin TX 1
Putnam Place Quincy MA 2
Mellon Bank Bldg, 1735 Mkt St Philadelphia PA 1
Vorhees Ctr, 333 Laurel Oak Vorhees NJ 1
Vorhees Ctr,400 Laurel Oak Vorhees NJ 1
Vorhees Ctr, 1000 Vorhs Vorhees NJ 1
Signature 91, 35 Thorpe Ave Wallingford CT 1
Kings Mill Office Bldg Mason OH 1
Kings Park Irondequoit NY 1
Austin Surgical Plaza Austin TX 1
One Memphis Place Memphis TN 1
3330 North Washington Blvd Arlington VA 1
Research Park (includes Solectron Expan.) Austin TX 3
Research Park - Phase II Austin TX 2
Street City St. Properties
- ----------------------------------------------------------------------------------------------------------
Research Park - Land Austin TX
700 Cherington Parkway Pittsburgh PA 1
Metro Exec Ctr-4201 Patterson Baltimore MD 1
580 Virginia Drive Ft. Washington PA 1
Liberty Plaza Wallingford CT 1
2800 Eisenhower Dr Alexandria VA 1
Meridian Executive Park, 1601 Rio Grande Austin TX 1
1525 Locust St. Philadelphia PA 1
One Suffolk Square Islandia NY 1
The Pavillion, 200 Old County Rd. Mineola NY 1
One Lincoln Center Syracuse NY 1
Exchange Park Austin TX 4
Regents Center Tempe AZ 2
1001 Jefferson Plaza Wilmington DE 1
Parkside Office Bldg San Antonio TX 1
Atrium Office Centre Austin TX 1
Quadrant Office Bldg Brooklyn Park MN 1
Superior Plaza St. Louis Park MN 1
Willow Creek Plaza Plymouth MN 1
Capitol Office Building St. Paul MN 1
Old Court Medical Bldg Pikesville MD 1
Cherrington Corporate Center Moon Township PA 6
Albuquerque Office Complex Albuquerque NM 4
Union Meeting Corporate Center III Blue Bell PA 3
251 Salina Meadows Parkway Syracuse NY 1
Wright I & II Chantilly VA 2
The Towle Building Minneapolis MN 1
Lakeview Plaza Austin TX 1
3840 South Wadsworth Blvd. Lakewood CO 2
Widewaters V DeWitt NY 1
145 University Avenue Westwood MA 1
47 Harvard Street Westwood MA 1
515 Penn Ave Ft. Washington PA 1
525 Virginia Drive Ft. Washington PA 1
723 Drescher Road Horsham PA 1
701 George Washington Hw Lincoln RI 1
4 Maguire Rd Lexington MA 1
1305 Corp Ctr Dr-I/Shop Eagan MN 1
2250 Pilot Knob Rd-I/Shop Mendota Heights MN 1
Street City St. Properties
- ----------------------------------------------------------------------------------------------------------
4421 W.John Carp Fw-I/Shop Irving TX 1
4770 Regent Blvd.-I/Shop Irving TX 1
8880 Queen Ave-I/shop Bloomington MN 1
2100 NW 82nd Ave-I/Shop Miami FL 1
Owens & Minor Office/Distrib Greenburg PA 1
165 University Ave Westwood MA 1
Chase Bldg Wilmington DE 1
7-9 Vreeland Road Florham Park NJ 1
3000 Goffs Falls Road Manchester NH 1
Two Corporate Center Drive Melville NY 1
2444 West Las Palmerita Drive Phoenix AZ 1
Fallon Clinics MA 20
830 E. Potomac Circle Aurora CO 1
710 North Euclid - bldg1 of 3 Anaheim CA 1
1085 North Harbor-bld 3of3 Anaheim CA 1
210 Mall Boulevard King of Prussia PA 1
1911 Mills Ave Orlando FL 1
1825 Mills Ave Orlando FL 1
1925 N. Mills Ave Orlando FL 1
The Oklahoma Clinics Oklahoma City OK 5
HIP of NY White Plains NY 1
HIP of NY Brooklyn NY 1
15 Twelfth Street Petersburg AK 1
711 14th Avenue Safford AZ 1
220 E. Bryan Street Savannah GA 1
435 Montano Boulevard Albuquerque NM 1
2029 Stonewall Jackson Dr Falling Waters WV 1
55 North Robinson Oklahoma City OK 1
4700 River Road Riverdale MD 1
4241 N.E. 34th Street Kansas City MO 1
9797 Aero Drive San Diego CA 1
5353 North Yellowstone Dr Cheyenne WY 1
4560 Viewridge Avenue San Diego CA 1
1474 Rodeo Road Santa Fe NM 1
4181 Ruffin Road San Diego CA 1
820 West Diamond Avenue Gaithersburg MD 1
20400 Century Boulevard Germantown MD 1
6710 Oxon Hill Drive Oxon Hill MD 1
5600 Columbia Pike Falls Church VA 1
Street City St. Properties
- ----------------------------------------------------------------------------------------------------------
20 Massachusetts Avenue Washington DC 1
400 State Avenue Kansas City KS 1
201 Indianola Avenue Phoenix AZ 1
3285 E. Hemisphere Loop Tucson AZ 1
5051 Rodeo Road Los Angeles CA 1
701 Clay Avenue Waco Tx 1
16194 West 45th Street Golden CO 1
---------------------------------------------------------
HRPT Grand Totals 163
=========================================================
Part II (Unencumbered Mortgage Notes)
Mortgages: Balances Maturity
--------- -------- --------
Florence KS 500,000 12/31/06
RiverPark KS 943,212 11/09/02
(balance at 12/31/00)
Austin TX 1,300,000 05/01/01
---------
2,743,212
SCHEDULE 9.4
Existing Investments
1. HPT - 4,000,000 shares (7.1%)
2. SNH - 12,809,238 shares (49.4%)
EXHIBIT A
FORM OF ASSIGNMENT AND Acceptance AGREEMENT
THIS ASSIGNMENT AND Acceptance AGREEMENT dated as of ___________, 200_
(the "Agreement") by and among _________________________ (the "Assignor"),
_________________________ (the "Assignee"), and First Union National Bank, as
Agent (the "Agent").
WHEREAS, the Assignor is a Lender under that certain Credit Agreement
dated as of April 30, 2001 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among HRPT
Properties Trust (the "Borrower"), the financial institutions party thereto and
their assignees under Section 12.5 thereof (the "Lenders"), the Agent, and the
other parties thereto;
WHEREAS, the Assignor desires to assign to the Assignee, among other
things, all or a portion of the Assignor's Commitment under the Credit
Agreement, all on the terms and conditions set forth herein; and
WHEREAS, the Agent consents to such assignment on the terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of ____________, 200_ (the
"Assignment Date"), the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $__________ interest (such interest being
the "Assigned Commitment") in and to the Assignor's Commitment and all of the
other rights and obligations of the Assignor under the Credit Agreement, such
Assignor's Revolving Note and the other Loan Documents (representing ______% in
respect of the aggregate amount of all Lenders' Commitments), including without
limitation, a principal amount of outstanding Revolving Loans equal to
$_________ and all voting rights of the Assignor associated with the Assigned
Commitment, all rights to receive interest on such amount of Revolving Loans and
all commitment and other Fees with respect to the Assigned Commitment and other
rights of the Assignor under the Credit Agreement and the other Loan Documents
with respect to the Assigned Commitment, all as if the Assignee were an original
Lender under and signatory to the Credit Agreement having a Commitment equal to
the amount of the Assigned Commitment. The Assignee, subject to the terms and
conditions hereof, hereby assumes all obligations of the Assignor with respect
to the Assigned Commitment as if the Assignee were an original Lender under and
signatory to the Credit Agreement having a Commitment equal to the Assigned
Commitment, which obligations shall include, but shall not
A-1
be limited to, the obligation of the Assignor to make Revolving Loans to the
Borrower with respect to the Assigned Commitment, the obligation to pay the
Agent amounts due in respect of draws under Letters of Credit as required under
Section 2.4(i) of the Credit Agreement and the obligation to indemnify the Agent
as provided therein (the foregoing enumerated obligations, together with all
other similar obligations more particularly set forth in the Credit Agreement
and the other Loan Documents, shall be referred to hereinafter, collectively, as
the "Assigned Obligations"). [In addition, the Assignor hereby irrevocably
sells, transfers and assigns to the Assignee, without recourse, a $____________
interest in and to the Assignor's Bid Rate Note, including without limitation, a
principal amount of outstanding Bid Rate Loans owing to the Assignor in an
aggregate amount equal to $__________, all rights to receive interest on such
amount of Bid Rate Loans and other rights of the Assignor under the Credit
Agreement and the other Loan Documents with respect to such Bid Rate Loans, all
as if the Assignee had originally made such amount of Bid Rate Loans to the
Borrower. The obligations assigned pursuant to the immediately preceding
sentence shall constitute Assigned Obligations hereunder.] The Assignor shall
have no further duties or obligations with respect to, and shall have no further
interest in, the Assigned Obligations or the Assigned Commitment from and after
the Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is without
recourse to the Assignor. The Assignee makes and confirms to the Agent, the
Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XI. of the Credit Agreement. Not in
limitation of the foregoing, the Assignee acknowledges and agrees that, except
as set forth in Section 4 below, the Assignor is making no representations or
warranties with respect to, and the Assignee hereby releases and discharges the
Assignor for any responsibility or liability for: (i) the present or future
solvency or financial condition of the Borrower, any Subsidiary or any other
Loan Party, (ii) any representations, warranties, statements or information made
or furnished by the Borrower, any Subsidiary or any other Loan Party in
connection with the Credit Agreement or otherwise, (iii) the validity, efficacy,
sufficiency, or enforceability of the Credit Agreement, any other Loan Document
or any other document or instrument executed in connection therewith, or the
collectibility of the Assigned Obligations, (iv) the perfection, priority or
validity of any Lien with respect to any collateral at any time securing the
Obligations or the Assigned Obligations under the Notes or the Credit Agreement
and (v) the performance or failure to perform by the Borrower or any other Loan
Party of any obligation under the Credit Agreement or any other Loan Document to
which it is a party. Further, the Assignee acknowledges that it has,
independently and without reliance upon the Agent, or on any affiliate or
subsidiary thereof, the Assignor or any other Lender and based on the financial
statements supplied by the Borrower and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to become a
Lender under the Credit Agreement. The Assignee also acknowledges that it will,
independently and without reliance upon 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 Credit Agreement or any other Loan Documents or pursuant to any
other obligation. Except as expressly provided in the Credit Agreement, the
Agent shall have no duty or responsibility whatsoever, either initially or on a
continuing basis, to provide the Assignee with any credit or other information
with respect to the Borrower or any other Loan Party or to notify the Assignee
of any Default or Event of Default.
A-2
The Assignee has not relied on the Agent as to any legal or factual matter in
connection therewith or in connection with the transactions contemplated
thereunder.
Section 2. Payment by Assignee. In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, an amount equal to $_________ representing (i)
the aggregate principal amount outstanding of the Loans owing to the Assignor
under the Credit Agreement and the other Loan Documents being assigned hereby
plus (ii) the aggregate amount of payments previously made by Assignor under
Section 2.4(j) of the Credit Agreement which have not been repaid and which are
being assigned hereby.
Section 3. Payments by Assignor. The Assignor agrees to pay to the
Agent on the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.
Section 4. Representations and Warranties of Assignor. The Assignor
hereby represents and warrants to the Assignee that (a) as of the Assignment
Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment
under the Credit Agreement [and the outstanding principal balance of Bid Rate
Loans owing to the Assignor] (without reduction by any assignments thereof which
have not yet become effective), equal to $____________ [and $__________,
respectively], and that the Assignor is not in default of its obligations under
the Credit Agreement; and (ii) the outstanding balance of Revolving Loans owing
to the Assignor (without reduction by any assignments thereof which have not yet
become effective) is $____________; and (b) it is the legal and beneficial owner
of the Assigned Commitment which is free and clear of any adverse claim created
by the Assignor.
Section 5. Representations, Warranties and Agreements of Assignee. The
Assignee (a) represents and warrants that it is (i) legally authorized to enter
into this Agreement, (ii) an "accredited investor" (as such term is used in
Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant thereto and such other
documents and information (including without limitation the Loan Documents) as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; (c) appoints and authorizes the Agent to take such action
as contractual representative on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof together
with such powers as are reasonably incidental thereto; and (d) agrees that it
will become a party to and shall be bound by the Credit Agreement and the other
Loan Documents to which the other Lenders are a party on the Assignment Date and
will perform in accordance therewith all of the obligations which are required
to be performed by it as a Lender.
Section 6. Recording and Acknowledgment by the Agent. Following the
execution of this Agreement, the Assignor will deliver to the Agent (a) a duly
executed copy of this Agreement for acknowledgment and recording by the Agent
and (b) the Assignor's Revolving Note [and Bid Rate Note]. Upon such
acknowledgment and recording, from and after the Assignment Date, the Agent
shall make all payments in respect of the interest assigned hereby
A-3
(including payments of principal, interest, Fees and other amounts) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the Assignment Date
directly between themselves.
Section 7. Addresses. The Assignee specifies as its address for notices
and its Lending Office for all Loans, the offices set forth below:
Notice Address:
------------------------------------
Telephone No.:
-------------
Telecopy No.:
-----------------------
Lending Office:
------------------------------------
Telephone No.:
-------------
Telecopy No.:
-----------------------
Section 8. Payment Instructions. All payments to be made to the
Assignee under this Agreement by the Assignor, and all payments to be made to
the Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the following instructions:
------------------
------------------
Section 9. Effectiveness of Assignment. This Agreement, and the
assignment and assumption contemplated herein, shall not be effective until (a)
this Agreement is executed and delivered by each of the Assignor, the Assignee,
the Agent, and if required under Section 12.5.(d) of the Credit Agreement, the
Borrower, and (b) the payment to the Assignor of the amounts, if any, owing by
the Assignee pursuant to Section 2 hereof and (c) the payment to the Agent of
the amounts, if any, owing by the Assignor pursuant to Section 3 hereof. Upon
recording and acknowledgment of this Agreement by the Agent, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Agreement, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent provided in this
Agreement, relinquish its rights (except as otherwise provided in Section 12.10
of the Credit Agreement) and be released from its obligations under the Credit
Agreement; provided, however, that if the Assignor does not assign its entire
interest under the Loan Documents, it shall remain a Lender entitled to all of
the benefits and subject to all of the obligations thereunder with respect to
its Commitment.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
A-4
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 13. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent which shall affect
the rights or duties of the Agent under this Agreement shall not be effective
unless signed by the Agent.
Section 14. Entire Agreement. This Agreement embodies the entire
agreement between the Assignor and the Assignee with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.
Section 15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 16. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Include this Section only if Borrower's consent is required under
Section 12.5.(d) Section 17. Agreements of the Borrower. The Borrower hereby
agrees that the Assignee shall be a Lender under the Credit Agreement having a
Commitment equal to the Assigned Commitment. The Borrower agrees that the
Assignee shall have all of the rights and remedies of a Lender under the Credit
Agreement and the other Loan Documents as if the Assignee were an original
Lender under and signatory to the Credit Agreement, including, but not limited
to, the right of a Lender to receive payments of principal and interest with
respect to the Assigned Obligations, and to the Revolving Loans made by the
Lenders after the date hereof and to receive the commitment and other Fees
payable to the Lenders as provided in the Credit Agreement. Further, the
Assignee shall be entitled to the indemnification provisions from the Borrower
in favor of the Lenders as provided in the Credit Agreement and the other Loan
Documents. The Borrower further agrees, upon the execution and delivery of this
Agreement, to execute in favor of the Assignee Notes as required by Section
12.5(d) of the Credit Agreement. Upon receipt by the Assignor of the amounts due
the Assignor under Section 2, the Assignor agrees to surrender to the Borrower
such Assignor's Notes.]
[Signatures on Following Pages]
A-5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment and Acceptance Agreement as of the date and year first written above.
ASSIGNOR:
[Name of Assignor]
By:
-----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASSIGNEE:
[Name of Assignee]
By:
-----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Include signature of the Borrower only if
required under Section 12.5.(d) of the Credit
Agreement]
Agreed and consented to as of the date first written above.
BORROWER:
HRPT PROPERTIES TRUST
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signatures Continued on Following Page]
A-6
Accepted as of the date first written above.
AGENT:
First Union National Bank, as Agent
By:
-----------------------------------------
Name:
---------------------------------
Title:
--------------------------------
A-7
EXHIBIT B
FORM OF designation AGREEMENT
THIS designation AGREEMENT dated as of ___________, _____ (the
"Agreement") by and among _________________________ (the "Designating Lender"),
_________________________ (the "Designated Lender") and First Union National
Bank, as Agent (the "Agent").
WHEREAS, the Designating Lender is a Lender under that certain Credit
Agreement dated as of April 30, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among HRPT
Properties Trust (the "Borrower"), the financial institutions party thereto and
their assignees under Section 12.5 thereof (the "Lenders"), the Agent, and the
other parties thereto;
WHEREAS, pursuant to Section 12.5(e), the Designating Lender desires to
designate the Designated Lender as its "Designated Lender" under and as defined
in the Credit Agreement; and
WHEREAS, the Agent consents to such designation on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Designation. Subject to the terms and conditions of this
Agreement, the Designating Lender hereby designates the Designated Lender, and
the Designated Lender hereby accepts such designation, to have a right to make
Bid Rate Loans on behalf of the Designating Lender pursuant to Section 2.2. of
the Credit Agreement. Any assignment by the Designating Lender to the Designated
Lender of rights to make a Bid Rate Loan shall only be effective at the time
such Bid Rate Loan is funded by the Designated Lender. The Designated Lender,
subject to the terms and conditions hereof, hereby agrees to make such accepted
Bid Rate Loans and to perform such other obligations as may be required of it as
a Designated Lender under the Credit Agreement.
Section 2. Designating Lender Not Discharged. Notwithstanding the
designation of the Designated Lender hereunder, the Designating Lender shall be
and remain obligated to the Borrower, the Agent and the Lenders for each and
every of the obligations of the Designating Lender and its related Designated
Lender with respect to the Credit Agreement and the other Loan Documents,
including, without limitation, any indemnification obligations under Section
11.7 of the Credit Agreement and any sums otherwise payable to the Borrower by
the Designated Lender.
Section 3. No Representations by Designating Lender. The Designating
Lender makes no representation or warranty and, except as set forth in Section 8
below, assumes no
B-1
responsibility pursuant to this Agreement with respect to (a) any statements,
warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument and document furnished
pursuant thereto and (b) the financial condition of the Borrower, any Subsidiary
or any other Loan Party or the performance or observance by the Borrower or any
other Loan Party of any of its respective obligations under any Loan Document to
which it is a party or any other instrument or document furnished pursuant
thereto.
Section 4. Representations and Covenants of Designated Lender. The
Designated Lender makes and confirms to the Agent, the Designating Lender, and
the other Lenders all of the representations, warranties and covenants of a
Lender under Article XI of the Credit Agreement. Not in limitation of the
foregoing, the Designated Lender (a) represents and warrants that it (i) is
legally authorized to enter into this Agreement; (ii) is an "accredited
investor" (as such term is used in Regulation D of the Securities Act) and (iii)
meets the requirements of a "Designated Lender" contained in the definition of
such term contained in the Credit Agreement; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant thereto and such other documents and information
(including without limitation the Loan Documents) as it has deemed appropriate
to make its own credit analysis and decision to enter into this Agreement; (c)
confirms that it has, independently and without reliance upon the Agent, or on
any affiliate thereof, the Designating Lender or any other Lender and based on
such financial statements and such other documents and information, made its own
credit analysis and decision to become a Designated Lender under the Credit
Agreement; (d) appoints and authorizes the Agent to take such action as
contractual representative on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Agent by the terms thereof together with
such powers as are reasonably incidental thereto; and (e) agrees that it will
become a party to and shall be bound by the Credit Agreement, the other Loan
Documents to which the other Lenders are a party on the Effective Date (as
defined below) and will perform in accordance therewith all of the obligations
which are required to be performed by it as a Designated Lender. The Designated
Lender also acknowledges that it will, independently and without reliance upon
the Agent, the Designating Lender 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 Credit
Agreement or any Note or pursuant to any other obligation. The Designated Lender
acknowledges and agrees that except as expressly required under the Credit
Agreement, the Agent shall have no duty or responsibility whatsoever, either
initially or on a continuing basis, to provide the Designated Lender with any
credit or other information with respect to the Borrower, any Subsidiary or any
other Loan Party or to notify the Designated Lender of any Default or Event of
Default.
Section 5. Appointment of Designating Lender as Attorney-In-Fact. The
Designated Lender hereby appoints the Designating Lender as the Designated
Lender's agent and attorney-in-fact, and grants to the Designating Lender an
irrevocable power of attorney, to receive any and all payments to be made for
the benefit of the Designated Lender under the Credit Agreement, to deliver and
receive all notices and other communications under the Credit Agreement and
other Loan Documents and to exercise on the Designated Lender's behalf all
B-2
rights to vote and to grant and make approvals, waivers, consents of amendments
to or under the Credit Agreement or other Loan Documents. Any document executed
by the Designating Lender on the Designated Lender's behalf in connection with
the Credit Agreement or other Loan Documents shall be binding on the Designated
Lender. Each Borrower, each Agent and each of the Lenders may rely on and are
beneficiaries of the preceding provisions.
Section 6. Acceptance by the Agent. Following the execution of this
Agreement by the Designating Lender and the Designated Lender, the Designating
Lender will (i) deliver to the Agent a duly executed original of this Agreement
for acceptance by the Agent and (ii) pay to the Agent the fee, if any, payable
under the applicable provisions of the Credit Agreement whereupon this Agreement
shall become effective as of the date of such acceptance or such other date as
may be specified on the signature page hereof (the "Effective Date").
Section 7. Effect of Designation. Upon such acceptance and recording by
the Agent, as of the Effective Date, the Designated Lender shall be a party to
the Credit Agreement with a right to make Bid Rate Loans as a Lender pursuant to
Section 2.2. of the Credit Agreement and the rights and obligations of a Lender
related thereto; provided, however, that the Designated Lender shall not be
required to make payments with respect to such obligations except to the extent
of excess cash flow of the Designated Lender which is not otherwise required to
repay obligations of the Designated Lender which are then due and payable.
Notwithstanding the foregoing, the Designating Lender, as agent for the
Designated Lender, shall be and remain obligated to the Borrowers, the Agent and
the Lenders for each and every of the obligations of the Designated Lender and
the Designating Lender with respect to the Credit Agreement.
Section 8. Indemnification of Designated Lender. The Designating Lender
unconditionally agrees to pay or reimburse the Designated Lender and save the
Designated Lender 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 Designated Lender, in its capacity as
such, in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Designated Lender hereunder or
thereunder, provided that the Designating Lender shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Designated Lender's gross negligence or willful misconduct.
Section 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 10. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
B-3
Section 11. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 12. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by all parties hereto.
Section 13. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 14. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Signatures on Following Page]
B-4
IN WITNESS WHEREOF, the parties hereto have duly executed this
Designation Agreement as of the date and year first written above.
Effective Date:
--------------------------
DESIGNATING LENDER:
[Name of Designating Lender]
By:
-----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Designated Lender:
[Name of Designated Lender]
By:
-----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of the date first written above.
AGENT:
FIRST UNION NATIONAL BANK, as Agent
By:
-----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-5
EXHIBIT C
FORM OF NOTICE OF BORROWING
____________, 200_
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: _____________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
1. Pursuant to Section 2.1.(b) of the Credit Agreement, the
Borrower hereby requests that the Lenders make Revolving Loans
to the Borrower in an aggregate amount equal to
$_______________.
2. The Borrower requests that such Revolving Loans be made
available to the Borrower on ____________, 200_.
3. The Borrower hereby requests that the requested Revolving
Loans all be of the following Type:
[Check one box only]
/ / Base Rate Loans
/ / LIBOR Loans, each with an initial Interest Period
for a duration of:
[Check one box only] / / 7 days
/ / 30 days
/ / 90 days
C-1
4. The proceeds of this borrowing of Revolving Loans will be used
for the following purpose: -------------------------
------------------------------------------------------------.
5. The Borrower requests that the proceeds of this borrowing of
Revolving Loans be made available to the Borrower by
____________________________.
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the making of the requested Revolving
Loans and after giving effect thereto, (a) no Default or Event of Default has or
shall have occurred and be continuing, and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly
permitted under the Credit Agreement. In addition, the Borrower certifies to the
Agent and the Lenders that all conditions to the making of the requested
Revolving Loans contained in Article V. of the Credit Agreement will have been
satisfied at the time such Revolving Loans are made.
If notice of the requested borrowing of Revolving Loans was previously
given by telephone, this notice is to be considered the written confirmation of
such telephone notice required by Section 2.1.(b) of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Borrowing as of the date first written above.
HRPT PROPERTIES TRUST
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
C-2
EXHIBIT D
FORM OF NOTICE OF CONTINUATION
____________, 200_
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: __________________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Pursuant to Section 2.9. of the Credit Agreement, the Borrower hereby
requests a Continuation of a borrowing of Loans under the Credit Agreement, and
in that connection sets forth below the information relating to such
Continuation as required by such Section of the Credit Agreement:
1. The proposed date of such Continuation is ____________, _____.
2. The aggregate principal amount of Loans subject to the
requested Continuation is $________________________ and was
originally borrowed by the Borrower on ____________, 200_.
3. The portion of such principal amount subject to such
Continuation is $________________.
4. The current Interest Period for each of the Loans subject to
such Continuation ends on ________________, 200_.
D-1
5. The duration of the new Interest Period for each of such Loans
or portion thereof subject to such Continuation is:
[Check one box only] / / 7 days
/ / 30 days
/ / 90 days
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested Continuation, and
after giving effect to such Continuation, no Default or Event of Default has or
shall have occurred and be continuing.
If notice of the requested Continuation was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.9. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Continuation as of the date first written above.
HRPT PROPERTIES TRUST
By:
------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
D-2
EXHIBIT E
FORM OF NOTICE OF CONVERSION
____________, 200_
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: ______________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Pursuant to Section 2.10. of the Credit Agreement, the Borrower hereby
requests a Conversion of a borrowing of Loans of one Type into Loans of another
Type under the Credit Agreement, and in that connection sets forth below the
information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The proposed date of such Conversion is ______________, 200_.
2. The Loans to be Converted pursuant hereto are currently:
[Check one box only] / / Base Rate Loans
/ / LIBOR Loans
3. The aggregate principal amount of Loans subject to the
requested Conversion is $_____________________ and was
originally borrowed by the Borrower on ____________, 200_.
4. The portion of such principal amount subject to such
Conversion is $___________________.
E-1
5. The amount of such Loans to be so Converted is to be converted
into Loans of the following Type:
[Check one box only]
/ / Base Rate Loans
/ / LIBOR Loans, each with an initial Interest Period
for a duration of:
[Check one box only] / / 7 days
/ / 30 days
/ / 90 days
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof and as of the date of the requested Conversion and after giving
effect thereto, (a) no Default or Event of Default has or shall have occurred
and be continuing, and (b) the representations and warranties made or deemed
made by the Borrower and each other Loan Party in the Loan Documents to which
any of them is a party are and shall be true and correct in all material
respects, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties were true and accurate on and as of such earlier date) and except
for changes in factual circumstances specifically and expressly permitted under
the Credit Agreement.
If notice of the requested Conversion was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.10. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Conversion as of the date first written above.
HRPT PROPERTIES TRUST
By:
------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
E-2
EXHIBIT F
FORM OF NOTICE OF SWINGLINE BORROWING
------------, -----
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: ______________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
1. Pursuant to Section 2.3.(b) of the Credit Agreement, the
Borrower hereby requests that the Swingline Lender make a
Swingline Loan to the Borrower in an amount equal to
$__________________.
2. The Borrower requests that such Swingline Loan be made
available to the Borrower on ____________, 200_.
3. The proceeds of this Swingline Loan will be used for the
following purpose: ________________________________________
___________________________________________________________.
4. The Borrower requests that the proceeds of such Swingline Loan
be made available to the Borrower by
______________________________.
The Borrower hereby certifies to the Agent, the Swingline Lender and
the Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after making such Swingline Loan, (a) no Default
or Event of Default has or shall have occurred and be continuing, and (b) the
representations and warranties made or deemed made by the Borrower and each
other Loan Party in the Loan Documents to which any of them is a party are and
shall be true and correct in all material respects, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties were true and accurate on and
as of such earlier date) and except for changes in factual
F-1
circumstances specifically and expressly permitted under the Credit Agreement.
In addition, the Borrower certifies to the Agent and the Lenders that all
conditions to the making of the requested Swingline Loan contained in Article V.
of the Credit Agreement will have been satisfied at the time such Swingline Loan
is made.
If notice of the requested borrowing of this Swingline Loan was
previously given by telephone, this notice is to be considered the written
confirmation of such telephone notice required by Section 2.3.(b) of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Swingline Borrowing as of the date first written above.
HRPT PROPERTIES TRUST
By:
-----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EXHIBIT G
FORM OF SWINGLINE NOTE
$25,000,000.00 April 30, 2001
FOR VALUE RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland
real estate investment trust (the "Borrower"), hereby promises to pay to the
order of FIRST UNION NATIONAL BANK (the "Swingline Lender") to its address at
One First Union Center, 301 South College Street, Charlotte, North Carolina
28288, or at such other address as may be specified in writing by the Swingline
Lender to the Borrower, the principal sum of TWENTY-FIVE MILLION AND NO/100
DOLLARS ($25,000,000.00) (or such lesser amount as shall equal the aggregate
unpaid principal amount of Swingline Loans made by the Swingline Lender to the
Borrower under the Credit Agreement), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.
The date, amount of each Swingline Loan, and each payment made on
account of the principal thereof, shall be recorded by the Swingline Lender on
its books and, prior to any transfer of this Note, endorsed by the Swingline
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Swingline Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Swingline Loans.
This Note is the Swingline Note referred to in the Credit Agreement
dated as of April 30, 2001 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among the Borrower,
the financial institutions party thereto and their assignees under Section 12.5
thereof (the "Lenders"), First Union National Bank, as Agent, and the other
parties thereto, and evidences Swingline Loans made to the Borrower thereunder.
Terms used but not otherwise defined in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Swingline
Loans upon the terms and conditions specified therein.
This Note shall be governed by, and construed in accordance with, the
laws of the State of NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
G-1
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Swingline Note under seal as of the date first written above.
HRPT PROPERTIES TRUST
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
[CORPORATE SEAL]
G-2
SCHEDULE OF Swingline LOANS
This Note evidences Swingline Loans made under the within-described
Credit Agreement to the Borrower, on the dates and in the principal amounts set
forth below, subject to the payments and prepayments of principal set forth
below:
Principal Unpaid
Amount Amount Paid or Principal Notation
Date of Loan of Loan Prepaid Amount Made By
- ------------ ------- ------- ------ -------
G-3
EXHIBIT H
FORM OF BID RATE QUOTE REQUEST
--------------, -----
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: ______________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
1. The Borrower hereby requests Bid Rate Quotes for the following
proposed Bid Rate Borrowings:
Borrowing Date Amount1 Interest Period2
- -------------- ------- ----------------
______________, 200_ $____________ ______ days
2. Borrower's Credit Rating, as applicable, as of the date hereof
is:
S&P _______
Moody's _______
- --------
1 Minimum amount of $10,000,000 or larger multiple of $500,000.
2 Not less than 7 nor more than 90 days in duration.
H-1
3. The proceeds of this Bid Rate borrowing will be used for the
following purpose: -----------------------------------------
----------------------------------------------------------.
4. After giving effect to the Bid Rate Borrowing requested
herein, the total amount of Bid Rate Loans outstanding shall
be $______________.3
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the date of the making of the requested Bid Rate Loans,
and after making such Bid Rate Loans, (a) no Default or Event of Default has or
shall have occurred and be continuing, and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly
permitted under the Credit Agreement. In addition, the Borrower certifies to the
Agent and the Lenders that all conditions to the making of the requested Bid
Rate Loans contained in Article V. of the Credit Agreement will have been
satisfied at the time such Bid Rate Loans are made.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Bid Rate Quote Request as of the date first written above.
HRPT PROPERTIES TRUST
By:
------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
- ----------
3 Must not be in excess of the lesser of (i) $200,000,000 or (ii) one-half of
the aggregate amount of all existing Commitments.
H-2
EXHIBIT I
FORM OF BID RATE QUOTE
----------------, ----
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: ______________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
In response to Borrower's Bid Rate Quote Request dated _____________, 200_,
the undersigned hereby makes the following Bid Rate Quote(s) on the following
terms:
1. Quoting Lender:____________________________
2. Person to contact at quoting Lender:_________________________
3. The undersigned offers to make Bid Rate Loan(s) in the
following principal amount(s), for the following Interest
Period(s) and at the following Bid Rate(s):
Borrowing Date Amount1 Interest Period2
- -------------- ------- ----------------
______________, 200_ $____________ ______ days
- --------
1 Minimum amount of $10,000,000 or larger multiple of $500,000.
2 Not less than 7 nor more than 90 days in duration.
I-1
The undersigned understands and agrees that the offer(s) set forth
above, subject to satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate[s] the undersigned to make the Bid Rate
Loan(s) for which any offer(s) [is/are] accepted, in whole or in part.
[Name of Quoting Lender]
By:
------------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
I-2
EXHIBIT J
FORM OF BID RATE QUOTE ACCEPTANCE
__________________, 200_
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: ______________
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Borrower hereby accepts the following offer(s) of Bid Rate Quotes to be
made available to the Borrower on ____________, 200_:
Quote Date Quoting Lender Amount Accepted
---------- -------------- ---------------
____________, 200_ _______________ $___________
____________, 200_ _______________ $___________
____________, 200_ _______________ $___________
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the date of the making of the requested Bid Rate Loans,
and after making such Bid Rate Loans, (a) no Default or Event of Default has or
shall have occurred and be continuing, and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties were true and accurate on and as of such earlier
date) and except for changes in factual circumstances specifically and expressly
permitted under the Credit Agreement. In addition, the Borrower certifies to the
Agent and the Lenders that all conditions to the making of the requested Bid
Rate
J-1
Loans contained in Article V. of the Credit Agreement will have been satisfied
at the time such Bid Rate Loans are made.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Bid Rate Quote Acceptance as of the date first written above.
HRPT PROPERTIES TRUST
By:
------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
J-2
EXHIBIT K
FORM OF REVOLVING NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland
real estate investment trust (the "Borrower"), hereby promises to pay to the
order of ____________________ (the "Lender"), in care of First Union National
Bank, as Agent (the "Agent") to First Union National Bank, One First Union
Center, 301 South College Street, Charlotte, North Carolina 28288, or at such
other address as may be specified in writing by the Agent to the Borrower, the
principal sum of ________________ AND ____/100 DOLLARS ($____________) (or such
lesser amount as shall equal the aggregate unpaid principal amount of Revolving
Loans made by the Lender to the Borrower under the Credit Agreement (as herein
defined)), on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount owing hereunder,
at the rates and on the dates provided in the Credit Agreement.
The date, amount of each Revolving Loan made by the Lender to the
Borrower, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Revolving Loans made by the Lender.
This Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of April 30, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), the Agent, and the other parties thereto.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 12.5.(d) of the Credit Agreement, this
Note may not be assigned by the Lender to any other Person.
K-1
This Note shall be governed by, and construed in accordance with, the
laws of the State of NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note under seal as of the date first written above.
HRPT PROPERTIES TRUST
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
[CORPORATE SEAL]
K-2
EXHIBIT L
FORM OF BID RATE NOTE
____________, 200_
FOR VALUE RECEIVED, the undersigned, HRPT PROPERTIES TRUST, a Maryland
real estate investment trust (the "Borrower"), hereby promises to pay to the
order of ________________ (the "Lender"), in care of First Union National Bank,
as Agent (the "Agent") to First Union National Bank, One First Union Center, 301
South College Street, Charlotte, North Carolina 28288, or at such other address
as may be specified in writing by the Agent to the Borrower, the aggregate
unpaid principal amount of Bid Rate Loans made by the Lender to the Borrower
under the Credit Agreement, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Bid Rate Loan, at such office at the rates and on the dates provided
in the Credit Agreement.
The date, amount, interest rate and maturity date of each Bid Rate Loan
made by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof, provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Bid Rate Loans made by the Lender.
This Note is one of the Bid Rate Notes referred to in the Credit
Agreement dated as of April 30, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), the Agent, and the other parties thereto,
and evidences Bid Rate Loans made by the Lender thereunder. Terms used but not
otherwise defined in this Note have the respective meanings assigned to them in
the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Bid Rate
Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.5. of the Credit Agreement, this Note may
not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
laws of the State of NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
L-1
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Bid
Rate Note under seal as of the date first written above.
HRPT PROPERTIES TRUST
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attest:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
[CORPORATE SEAL]
L-2
SCHEDULE OF BID RATE LOANS
This Note evidences Bid Rate Loans made under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts,
bearing interest at the rates and maturing on the dates set forth below, subject
to the payments and prepayments of principal set forth below:
Principal Maturity Amount Unpaid
Date of Amount of Interest Date of Paid or Principal Notation
Loan Loan Rate Loan Prepaid Amount Made By
---- ---- ---- ---- ------- ------ -------
L-3
EXHIBIT M
FORM OF CANCELLATION REQUEST
____________, 2003
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Attention: Rex E. Rudy
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Pursuant to Section 2.13 of the Credit Agreement, the Borrower hereby
requests that the Lenders agree to shorten the Termination Date from its current
date of April 30, 2005 by one year to April 30, 2004.
The Borrower hereby certifies to the Agent and the Lenders that (a) no
Default or Event of Default has occurred and is continuing, and (b) the
representations and warranties made or deemed made by the Borrower and each
other Loan Party in the Loan Documents to which it is a party, are true and
correct, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties were true and accurate on and as of such earlier date) and except for
changes in factual circumstances specifically and expressly permitted under the
Credit Agreement.
M-1
IN WITNESS WHEREOF, the undersigned has duly executed this Cancellation
Request as of the date first written above.
HRPT PROPERTIES TRUST
By:
-----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
M-2
EXHIBIT N-1
FORM OF OPINION OF COUNSEL
[LETTERHEAD OF BORROWER'S COUNSEL]
First Union National Bank, as Agent
for the Lenders under the Credit
Agreement referred to below
One First Union Center, TW-6
301 South College Street
Charlotte, North Carolina 28288
The Additional Addressees set
forth on Schedule I hereto
Ladies and Gentlemen:
This opinion is delivered to you pursuant to Section 5.1(a)(iv) of the
Credit Agreement dated as of April [19], 2001 (the "Credit Agreement") by and
among HRPT Properties Trust, a real estate investment trust organized under the
laws of the State of Maryland (the "Borrower"), the Lenders party thereto, First
Union National Bank, as Agent, and the other parties thereto. We have acted as
counsel for the Borrower and each of the Guarantors listed on Schedule II hereto
(collectively with Borrower, the "Loan Parties") in connection with the Credit
Agreement and the other Loan Documents identified below. Capitalized terms used
in this opinion, unless otherwise defined herein, shall have the meanings
assigned thereto in the Credit Agreement.
For purposes of the opinions expressed below, we have examined executed
counterparts of:
(i) the Credit Agreement;
(ii) the Revolving Notes;
(iii) the Bid Rate Notes;
(iv) the Swingline Note; and
(v) the Guaranty.
The Credit Agreement, the Revolving Notes, the Bid Rate Notes, the Swingline
Note and the Guaranty are collectively referred to herein as the "Loan
Documents".
In addition, we have examined the originals or copies of the
declaration of trust, limited partnership agreement, articles of incorporation,
articles of organization, by-laws and operating
N-1
agreements, as applicable, of each Loan Party (collectively, the "Organizational
Documents" for such Loan Party), certain resolutions of the board of directors
or other governing body of each Loan Party and such other records, agreements
and instruments of the Loan Parties, certificates of public officials and of
officers of the Loan Parties and such other documents and records, and such
matters of law, as we have deemed necessary as a basis for the opinions
hereinafter expressed.
In connection with this opinion, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity to the originals of
all documents submitted to us as copies, which facts we have not independently
verified. As to various facts material to the opinions set forth herein, we have
relied without independent verification upon factual representations made by the
Borrower in the Credit Agreement, upon certificates of public officials and upon
facts certified to us by officers of the Loan Parties, as the case may be.
For purposes of the opinions expressed herein, we have assumed that (i)
each Lender and Titled Agent, each Loan Party organized under the laws of a
jurisdiction other than Delaware, New York or Massachusetts and each other party
(other than Loan Parties organized under the laws of Delaware, New York or
Massachusetts) to the Loan Documents and to all other documents, agreements and
instruments examined by us (A) are corporations or other entities validly
existing under the laws of the jurisdiction of its organization and (B) have all
requisite power and authority (corporate and other), and have taken all
necessary action to enter into and perform all of its obligations under the Loan
Documents or such other documents, agreements and instruments to which they are
a party, and (ii) each Loan Document and each such other document, agreement and
instrument are and will be the valid, binding and enforceable obligations of
each party thereto, other than the Loan Parties. We express no opinion upon the
application of any federal, state or local statute, law, rule or regulation
(including without limitation any Federal or state banking, truth-in-lending or
other similar credit statute, law, rule or regulation) to the authority of any
Lender or Titled Agent to enter into and to carry out its respective obligations
under and exercise rights or remedies under the Loan Documents.
Statements herein as to the truth of certain matters "to our knowledge"
or as to matters "known to us" and similar statements refer to the knowledge
consciously held by the individual lawyers in our firm who have participated in
the negotiation and drafting of the Loan Documents without independent
investigation and do not necessarily refer to such knowledge as might be
acquired by a review of all of our files with respect to matters involving the
Loan Parties or by interviews with all present and former members and associates
of our firm. Without limiting the generality of the foregoing, please be advised
that in connection with the opinions expressed in paragraphs 6 and 8 below, we
have not conducted any searches of dockets of any courts or other Governmental
Authorities.
Barry M. Portnoy is a trustee of the Borrower, a trustee and/or director of
the Guarantors and a director and 50% shareholder of REIT Management & Research
Inc. ("RMR"), a Delaware corporation which is the Borrower's advisor. Jennifer
B. Clark is a Senior Vice President of the Borrower and an officer of several of
the Guarantors and of RMR. Mr. Portnoy and Ms. Clark are retired members of this
firm. Inquiries concerning matters which may be known to Mr. Portnoy or Ms.
Clark
N-2
should be directed to them.
This opinion is limited to the laws of the Commonwealth of
Massachusetts, the laws of the State of New York (with respect to paragraphs 5
and 11 only), the General Corporation Law and the Revised Uniform Limited
Partnership Act of the State of Delaware and the federal laws of the United
States of America, and we express no opinions with respect to the law of any
other jurisdiction. We express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lender Party may be
located or wherein enforcement of the Credit Agreement or any of the other Loan
Documents may be sought that limits the rates of interest legally chargeable or
collectible.
Our opinions set forth in paragraphs 1 and 3 below with respect to the
existence, good standing or qualification of the Borrower and the Guarantors in
various jurisdictions, other than the Guarantors which, as set forth on Schedule
II hereto, are Massachusetts "nominee trusts," are based solely on certificates
to that effect issued by the Secretaries of State of such jurisdictions and
heretofore delivered to the Agent. Our opinion set forth in paragraph 2 below
with respect to the existence of each Guarantor which, as set forth on Schedule
II hereto, is a Massachusetts "nominee trust," is based solely on a certificate
to such effect from its trustee or trustees heretofore delivered to the Agent.
Our opinions set forth below are subject to the following general
qualifications:
N-3
(a) Our opinion set forth in paragraph 5 below is subject to
(i) the effect of applicable bankruptcy, insolvency, receivership,
reorganization, moratorium, liquidation or other similar laws
(including, without limitation, all laws relating to fraudulent
transfers) relating to or affecting creditors' rights generally, and
(ii) general principles of equity (including the availability of
equitable remedies and further including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law.
Further, pursuant to such equitable principles, Section 3 of the
Guaranty, which provides, among other things, that the liability of the
Guarantors shall not be affected by amendments to or other changes in
the Loan Documents, might be enforceable only to the extent that such
amendments or other changes were not so material as to constitute a new
contract among the parties.
(b) We express no opinion as to powers provisions granting
indemnity or rights of contribution (to the extent limited by federal
or state securities laws or public policy).
(c) We express no opinion as to (i) any provision of a Loan
Document to the effect that provisions therein may only be amended or
waived in writing, to the extent that an oral agreement modifying such
provisions has been entered into, or (ii) any provision of any Loan
Document for the payment of an increased rate of interest after
maturity or a default, late charges or similar payments (or any
guaranty thereof) to the extent such interest, charger or payments
constitutes a penalty or for the payment of interest after judgment in
excess of any applicable statutory rate (or any guaranty thereof).
(d) The enforceability of the Loan Documents may be limited
(i) by general principles of contract law that where less than all of
an agreement is enforceable, the balance is enforceable only when the
unenforceable portion is not an essential part of the agreed exchange,
and (ii) by the exercise of judicial discretion regarding the
determination of damages and entitlement to attorneys' fees and other
costs.
(e) We express no opinion as to whether any of the Guarantors
may guarantee or otherwise become liable for indebtedness incurred by
the Borrower or another Loan Party except to the extent that the
guaranteeing Guarantor may be determined to have benefited from the
incurrence of such indebtedness by such other entity, and we express no
opinion as to whether the amount of such benefit may be determined by
any measure other than the extent to which proceeds of the indebtedness
incurred by such other entity are directly or indirectly made available
to the Guarantor for its corporate, partnership or analogous purposes.
For purposes of this opinion, we have relied on the certification of
each Loan Party that the transactions contemplated by the Loan
Documents are necessary or convenient to the conduct, promotion or
attainment of the business of such Loan Party.
N-4
(f) We express no opinion as to (i) whether a state court
outside of the State of New York or a Federal court would give effect
to the choice of New York law provided for in the Loan Documents or to
the provisions of Section 12.4(b) of the Credit Agreement or Section
17(b) of the Guaranty (or any comparable provision of any other Loan
Document), or (ii) the provisions of Section 12.4(b) of the Credit
Agreement or Section 17(b) of the Guaranty (or any comparable provision
of any other Loan Document) to the extent they relate to the subject
matter jurisdiction of any Federal court.
Based upon and subject to the foregoing, we are of the opinion that:
N-5
1. Each Guarantor which, as set forth on Schedule II hereto, is a
corporation or limited partnership organized under the laws of the State of
Delaware or the Commonwealth of Massachusetts (i) is validly existing and in
good standing as a corporation or limited partnership under the laws of the
State of Delaware or the Commonwealth of Massachusetts, as the case may be, and
(ii) has the corporate or partnership (as the case may be) power to execute and
deliver, and to perform its obligations under, the Guaranty, and to own and use
its material assets and conduct its business in all material respects as
presently conducted.
2. Each Guarantor which, as set forth on Schedule II hereto, is a
Massachusetts "nominee trust" (i) exists as a trust under the laws of the
Commonwealth of Massachusetts and (ii) has the trust power to execute, deliver
and perform the Guaranty and to own and lease its material assets and conduct
its business in all material respects as presently conducted.
3. The Borrower is qualified to transact business as a foreign real
estate investment trust or business trust in the jurisdictions listed [under]
its name on Schedule III hereto. Each Guarantor is qualified to transact
business as a foreign real estate investment trust, business trust, corporation
or limited partnership, as applicable, in the respective jurisdictions listed
[under] its name on such Schedule III.
4. The execution and delivery of the Guaranty by each Guarantor which
is organized under the laws of the State of Delaware or the Commonwealth of
Massachusetts and the performance by such Guarantor of its obligations
thereunder have been duly authorized by all necessary corporate, partnership or
trust (as the case may be) action on the part of such Guarantor.
5. Each Loan Party has duly executed and delivered the Loan Documents
to which it is a party, and each Loan Document is a valid and binding obligation
of each Loan Party which is a party thereto, enforceable against each such Loan
Party in accordance with its terms.
6. The execution and delivery by each of the Loan Parties of the Loan
Documents to which it is a party do not, and if each of the Loan Parties were
now to perform its obligations under such Loan Documents, such performance would
not, result in any material:
(a) violation of such Loan Party's respective Organizational
Documents;
(b) violation of any existing federal or Massachusetts
constitution or statute or any existing federal or Massachusetts
governmental regulation or rule to which such Loan Party or its assets
are subject;
(c) breach or violation of or default under any of the
agreements, instruments, indentures or other documents listed on
Schedule 6.1(g) or Schedule 6.1(h) to the Credit Agreement to which
such Loan Party is a party or by which such Loan Party or its assets is
bound;
N-6
(d) creation or imposition of any contractual lien or security
interest in, on or against the assets of any Loan Party under any of
the agreements, instruments, indentures or other documents listed on
Schedule 6.1(g) or Schedule 6.1(h) to the Credit Agreement to which
such Loan Party is a party or by which such Loan Party or its
respective assets is bound; or
(e) violation of any judicial or administrative decree, writ,
judgment or order to which, to our knowledge, any Loan Party or its
respective assets are subject.
7. The execution, delivery and performance by each of the Loan Parties
of each Loan Document to which it is a party, and the consummation by the Loan
Parties of the transactions thereunder, do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any Governmental Authority of the United States of America or the
Commonwealth of Massachusetts or by any Governmental Authority of the State of
Delaware pursuant to the General Corporation Law or the Revised Uniform Limited
Partnership Act of the State of Delaware.
8. To our knowledge there is no (i) undischarged judgment which has
been entered against any Loan Party, the satisfaction of which, or (ii) action,
suit, proceeding or investigation before or by any federal or state court,
agency or other governmental or administrative board or body, pending or
threatened, against any of the Loan Parties in which an unfavorable decision,
ruling or finding, would materially adversely affect the business or properties
or financial condition of the Loan Parties, considered as a consolidated whole,
or the validity or enforceability of any of the Loan Documents.
9. None of the Loan Parties is, or, after giving effect to the Loans,
if made on the date hereof, would be, subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended, or to any federal or Massachusetts statute
or regulation specifically limiting its ability to incur indebtedness for
borrowed money.
10. Assuming that Borrower applies the proceeds of the Loans as
provided in the Credit Agreement, the transactions contemplated by the Loan
Documents do not violate the provisions of Regulations T, U or X of the Federal
Reserve Board.
11. The consideration to be paid to the Lender for the financial
accommodations to be provided to the Loan Parties pursuant to the Credit
Agreement does not violate any law of the State of New York relating to interest
and usury.
This opinion is furnished to you solely for your benefit in connection
with the consummation of the transactions contemplated by the Credit Agreement
and may not be relied upon by any other person or entity, other than an Assignee
of a Lender, or for any other purpose without our express, prior written
consent. All of the opinions set forth herein are rendered as of the date
hereof, and we assume no obligation to update such opinions to reflect any facts
or circumstances which may hereafter come to our attention or any changes in the
law which may hereafter occur.
N-7
Very truly yours,
[SULLIVAN & WORCESTER LLP]
N-8
SCHEDULE I
List of Additional Addressees
Fleet National Bank
Wells Fargo Bank, National Association
Commerzbank AG, New York and Grand Cayman Branches
The Bank of New York
AmSouth Bank
Citizens Bank of Massachusetts
SunTrust Bank
The Governor and Company of the Bank of Ireland
Chevy Chase Bank
Eastern Bank
National Bank of Egypt, New York Branch
RZB Finance LLC
Bank Leumi USA
N-9
SCHEDULE II
List of Guarantors
N-10
SCHEDULE III
List of Jurisdictions in which Borrower is Qualified to
Transact Business as a Foreign Trust
N-11
EXHIBIT O
FORM OF COMPLIANCE CERTIFICATE
_______________, 200_
First Union National Bank, as Agent
One First Union Center, TW-6
301 South College Street
Mail Code: NC0166
Charlotte, North Carolina 28288-0166
Each of the Lenders Party to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of April
30, 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among HRPT Properties Trust (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 12.5 thereof (the "Lenders"), First Union National Bank, as Agent (the
"Agent") and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Pursuant to Section 8.3. of the Credit Agreement, the undersigned
hereby certifies to the Agent and the Lenders as follows:
(1) The undersigned is the chief financial officer of the Borrower.
(2) The undersigned has examined the books and records of the Borrower
and has conducted such other examinations and investigations as are reasonably
necessary to provide this Compliance Certificate.
(3) No Default or Event of Default exists [if such is not the case,
specify such Default or Event of Default and its nature, when it occurred and
whether it is continuing and the steps being taken by the Borrower with respect
to such event, condition or failure].
(4) The representations and warranties made or deemed made by the
Borrower and the other Loan Parties in the Loan Documents to which any is a
party, are true and correct in all material respects on and as of the date
hereof except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and
except for
O-1
changes in factual circumstances specifically and expressly permitted under the
Credit Agreement.
(5) Attached hereto as Schedule 1 are reasonably detailed calculations
establishing whether or not the Borrower and its Subsidiaries were in compliance
with the covenants contained in Sections 9.1 through 9.3 and 9.6 of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first above written.
Name:
------------------------------------
Title:
------------------------------------
O-2
Schedule 1
[Calculations to be Attached]
O-3
EXHIBIT P
FORM OF GUARANTY
THIS GUARANTY dated as of April 30, 2001, executed and delivered by
each of the undersigned and the other Persons from time to time party hereto
pursuant to the execution and delivery of an Accession Agreement in the form of
Annex I hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) FIRST UNION
NATIONAL BANK, in its capacity as Agent (the "Agent") for the Lenders under that
certain that certain Credit Agreement dated as of April 30, 2001 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among HRPT Properties Trust (the "Borrower"), the financial
institutions party thereto and their assignees under Section 12.5 thereof (the
"Lenders"), the Agent, and the other parties thereto, and (b) the Lenders and
the Swingline Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and
the Swingline Lender have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Borrower owns, directly or indirectly, at least a majority
of the issued and outstanding Equity Interests in each Guarantor;
WHEREAS, the Borrower and each of the Guarantors, though separate legal
entities, are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation and have determined it to be in
their mutual best interests to obtain financing from the Agent, the Lenders and
the Swingline Lender through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent, the Lenders and the Swingline Lender making
such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, each Guarantor is willing to guarantee the
Borrower's obligations to the Agent, the Lenders and the Swingline Lender on the
terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Agent and the Lenders making, and continuing to make, such
financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any Lender, the
P-1
Swingline Lender or the Agent under or in connection with the Credit Agreement
and any other Loan Document, including without limitation, the repayment of all
principal of the Revolving Loans, Bid Rate Loans, Swingline Loans and the
Reimbursement Obligations, and the payment of all interest, Fees, charges,
attorneys' fees and other amounts payable to any Lender or the Agent thereunder
or in connection therewith; (b) any and all extensions, renewals, modifications,
amendments or substitutions of the foregoing; (c) all expenses, including,
without limitation, reasonable attorneys' fees and disbursements, that are
incurred by the Lenders and the Agent in the enforcement of any of the foregoing
or any obligation of such Guarantor hereunder; and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of each Guarantor for
its own account. Accordingly, none of the Lenders, the Swingline Lender or the
Agent shall be obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy any of them may have against the
Borrower, any other Guarantor or any other Person or commence any suit or other
proceeding against the Borrower, any other Guarantor or any other Person in any
court or other tribunal; (b) to make any claim in a liquidation or bankruptcy of
the Borrower, any other Guarantor or any other Person; or (c) to make demand of
the Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders, the
Swingline Lender or the Agent which may secure any of the Guarantied
Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agent, the Lenders or the Swingline Lender with respect thereto. The liability
of each Guarantor under this Guaranty shall be absolute, irrevocable and
unconditional in accordance with its terms and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including without limitation, the following (whether or not such Guarantor
consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other
term of any of the Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit
Agreement, any of the other Loan Documents, or any other documents, instruments
or agreements relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
P-2
(b) any lack of validity or enforceability of the Credit Agreement, any
of the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Agent, the Lenders or the Swingline Lender of
any security for the Guarantied Obligations, or any sale, exchange, release or
surrender of, or realization on, any collateral securing any of the Obligations;
(d) any settlement or compromise of any of the Guarantied Obligations,
any security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of the Borrower or any other
Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to such
Guarantor, the Borrower, any other Loan Party or any other Person, or any action
taken with respect to this Guaranty by any trustee or receiver, or by any court,
in any such proceeding;
(f) any act or failure to act by the Borrower, any other Loan Party or
any other Person which may adversely affect such Guarantor's subrogation rights,
if any, against the Borrower to recover payments made under this Guaranty;
(g) any nonperfection or impairment of any security interest or other
Lien on any collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid by the Borrower, any other Guarantor
or any other Person with respect to the liabilities of the Borrower to the
Agent, the Lenders or the Swingline Lender, regardless of what liabilities of
the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, a Guarantor hereunder (other than indefeasible
payment in full).
Section 4. Action with Respect to Guarantied Obligations. The Lenders
and the Agent may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor from its
obligations hereunder, take any and all actions described in Section 3 and may
otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend,
modify, alter or supplement the Credit Agreement or any other Loan Document; (c)
sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations; (d) release any other Loan Party or
other Person liable in any manner for the payment or collection of the
Guarantied Obligations; (e) exercise, or
P-3
refrain from exercising, any rights against the Borrower, any other Guarantor or
any other Person; and (f) apply any sum, by whomsoever paid or however realized,
to the Guarantied Obligations in such order as the Lenders shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes
to the Agent, the Lenders and the Swingline Lender all of the representations
and warranties made by the Borrower with respect to or in any way relating to
such Guarantor in the Credit Agreement and the other Loan Documents, as if the
same were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under the terms of
the Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent, the Swingline
Lender and/or the Lenders are prevented under Applicable Law or otherwise from
demanding or accelerating payment of any of the Guarantied Obligations by reason
of any automatic stay or otherwise, the Agent, the Swingline Lender and/or the
Lenders shall be entitled to receive from each Guarantor, upon demand therefor,
the sums which otherwise would have been due had such demand or acceleration
occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever
made on the Agent, any Lender or the Swingline Lender for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guarantied Obligations, and the Agent, such Lender or the Swingline Lender
repays all or part of said amount by reason of (a) any judgment, decree or order
of any court or administrative body of competent jurisdiction, or (b) any
settlement or compromise of any such claim effected by the Agent, such Lender or
the Swingline Lender with any such claimant (including the Borrower or a trustee
in bankruptcy for the Borrower), then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
on it, notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, any of the other Loan Documents, or any other instrument evidencing
any liability of the Borrower, and such Guarantor shall be and remain liable to
the Agent, such Lender or the Swingline Lender for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid to
the Agent, such Lender or the Swingline Lender.
Section 10. Subrogation. Upon the making by any Guarantor of any
payment hereunder for the account of the Borrower, such Guarantor shall be
subrogated to the rights of the payee against the Borrower; provided, however,
that such Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other
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claim or cause of action such Guarantor may have against the Borrower arising by
reason of any payment or performance by such Guarantor pursuant to this
Guaranty, unless and until all of the Guarantied Obligations have been
indefeasibly paid and performed in full. If any amount shall be paid to such
Guarantor on account of or in respect of such subrogation rights or other claims
or causes of action, such Guarantor shall hold such amount in trust for the
benefit of the Agent, the Lenders and the Swingline Lender and shall forthwith
pay such amount to the Agent to be credited and applied against the Guarantied
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement or to be held by the Agent as collateral security for any
Guarantied Obligations existing.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder, whether of principal, interest, Fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any Taxes), and if any Guarantor
is required by Applicable Law or by a Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Agent, the Lenders and
the Swingline Lender such additional amount as will result in the receipt by the
Agent, the Lenders and the Swingline Lender of the full amount payable hereunder
had such deduction or withholding not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the Agent and
each Lender, at any time during the continuance of an Event of Default, without
any prior notice to such Guarantor or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender subject to receipt of the
prior written consent of the Agent exercised in its sole discretion, to set off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by the Agent, such Lender, or any affiliate of the Agent or such
Lender, to or for the credit or the account of such Guarantor against and on
account of any of the Guarantied Obligations, although such obligations shall be
contingent or unmatured. Each Guarantor agrees, to the fullest extent permitted
by Applicable Law, that any Participant may exercise rights of setoff or
counterclaim and other rights with respect to its participation as fully as if
such Participant were a direct creditor of such Guarantor in the amount of such
participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants
and agrees for the benefit of the Agent, the Lenders and the Swingline Lender
that all obligations and liabilities of the Borrower to such Guarantor of
whatever description, including without limitation, all intercompany receivables
of such Guarantor from the Borrower (collectively, the "Junior Claims") shall be
subordinate and junior in right of payment to all Guarantied Obligations. If an
Event of Default shall have occurred and be continuing, then no Guarantor shall
accept any direct or indirect payment (in cash, property or securities, by
setoff or otherwise) from the Borrower on account of or in any manner in respect
of any Junior Claim until all of the Guarantied Obligations have been
indefeasibly paid in full.
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Section 14. Avoidance Provisions. It is the intent of each Guarantor,
the Agent, the Lenders and the Swingline Lender that in any Proceeding, such
Guarantor's maximum obligation hereunder shall equal, but not exceed, the
maximum amount which would not otherwise cause the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the Lenders
and the Swingline Lender) to be avoidable or unenforceable against such
Guarantor in such Proceeding as a result of Applicable Law, including without
limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the
"Bankruptcy Code") and (b) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such Proceeding, whether by virtue of
Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws under which
the possible avoidance or unenforceability of the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the Lenders
and the Swingline Lender) shall be determined in any such Proceeding are
referred to as the "Avoidance Provisions". Accordingly, to the extent that the
obligations of any Guarantor hereunder would otherwise be subject to avoidance
under the Avoidance Provisions, the maximum Guarantied Obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount which,
as of the time any of the Guarantied Obligations are deemed to have been
incurred under the Avoidance Provisions, would not cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the Agent,
the Lenders and the Swingline Lender), to be subject to avoidance under the
Avoidance Provisions. This Section is intended solely to preserve the rights of
the Agent, the Lenders and the Swingline Lender hereunder to the maximum extent
that would not cause the obligations of any Guarantor hereunder to be subject to
avoidance under the Avoidance Provisions, and no Guarantor or any other Person
shall have any right or claim under this Section as against the Agent, the
Lenders and the Swingline Lender that would not otherwise be available to such
Person under the Avoidance Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower and
the other Guarantors, and of all other circumstances bearing upon the risk of
nonpayment of any of the Guarantied Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Agent, the Lenders or the Swingline Lender shall have any duty
whatsoever to advise any Guarantor of information regarding such circumstances
or risks.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 17. Waiver of jury trial.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE
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LENDERS, THE AGENT AND EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN
WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE
OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY
OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE GUARANTORS, THE AGENT AND EACH LENDER HEREBY AGREES
THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY
GUARANTOR, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, THE LOANS, THE LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GUARANTOR AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION
OF THIS GUARANTY.
Section 18. Loan Accounts. The Agent, each Lender and the Swingline
Lender may maintain books and accounts setting forth the amounts of principal,
interest and other sums paid and payable with respect to the Guarantied
Obligations, and in the case of any dispute relating to any of the outstanding
amount, payment or receipt of any of the Guarantied Obligations or otherwise,
the entries in such books and accounts shall be deemed prima facie evidence of
the amounts and other matters set forth herein. The failure of the Agent, any
Lender or the Swingline Lender to maintain such books and accounts shall not in
any way relieve or discharge any Guarantor of any of its obligations hereunder.
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Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent, any Lender or the Swingline Lender in the exercise of any right or remedy
it may have against any Guarantor hereunder or otherwise shall operate as a
waiver thereof, and no single or partial exercise by the Agent, any Lender or
the Swingline Lender of any such right or remedy shall preclude any other or
further exercise thereof or the exercise of any other such right or remedy.
Section 20. Termination. This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement in
accordance with its terms.
Section 21. Successors and Assigns. Each reference herein to the Agent
or the Lenders shall be deemed to include such Person's respective successors
and assigns (including, but not limited to, any holder of the Guarantied
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to each Guarantor shall be deemed to include such
Guarantor's successors and assigns, upon whom this Guaranty also shall be
binding. The Lenders and the Swingline Lender may, in accordance with the
applicable provisions of the Credit Agreement, assign, transfer or sell any
Guarantied Obligation, or grant or sell participations in any Guarantied
Obligations, to any Person without the consent of, or notice to, any Guarantor
and without releasing, discharging or modifying any Guarantor's obligations
hereunder. Each Guarantor hereby consents to the delivery by the Agent or any
Lender to any Assignee or Participant (or any prospective Assignee or
Participant) of any financial or other information regarding the Borrower or any
Guarantor. No Guarantor may assign or transfer its obligations hereunder to any
Person without the prior written consent of all Lenders and any such assignment
or other transfer to which all of the Lenders have not so consented shall be
null and void.
Section 22. Joint and Several Obligations. the obligationS of the
Guarantors HEREUNDER SHALL BE joint and several, and ACCORDINGLY, each Guarantor
CONFIRMS THAT IT is liable for the full amount of the "GUARANTiED Obligations"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER gUARANTORS
HEREUNDER.
Section 23. Amendments. This Guaranty may not be amended except in
writing signed by the Requisite Lenders (or all of the Lenders if required under
the terms of the Credit Agreement), the Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
to this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at the Principal Office, not later than 2:00 p.m. on the date of demand
therefor.
Section 25. Notices. All notices, requests and other communications
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Agent, any Lender or the Swingline Lender at
its respective address for notices provided for in the Credit Agreement, or (c)
as to each such party at such other address as such party shall designate in a
written notice to
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the other parties. Each such notice, request or other communication shall be
effective (i) if mailed, when received; (ii) if telecopied, when transmitted; or
(iii) if hand delivered, when delivered; provided, however, that any notice of a
change of address for notices shall not be effective until received.
Section 26. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 28. Trustees, Etc. Not Liable.
IN THE CASE OF ANY GUARANTOR THAT IS A TRUST, NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF SUCH GUARANTOR SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, SUCH
GUARANTOR. ALL PERSONS DEALING WITH SUCH GUARANTOR, IN ANY WAY, SHALL LOOK ONLY
TO THE ASSETS OF SUCH GUARANTOR FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION OWING BY SUCH GUARANTOR HEREUNDER. THE PROVISIONS OF THIS SECTION
SHALL NOT LIMIT ANY OBLIGATIONS OF ANY LOAN PARTY.
Section 29. Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender, shall have any
liability with respect to, and each Guarantor hereby waives, releases, and
agrees not to sue any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by a Guarantor in
connection with, arising out of, or in any way related to, this Guaranty or any
of the other Loan Documents, or any of the transactions contemplated by this
Guaranty, the Credit Agreement or any of the other Loan Documents. Each
Guarantor hereby waives, releases, and agrees not to sue the Agent or any Lender
or any of the Agent's or any Lender's affiliates, officers, directors,
employees, attorneys, or agents for punitive damages in respect of any claim in
connection with, arising out of, or in any way related to, this Guaranty, the
Credit Agreement or any of the other Loan Documents, or any of the transactions
contemplated by Credit Agreement or financed thereby.
Section 30. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy,
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insolvency, reorganization, winding-up or composition for adjustment of debts,
whether now or hereafter in effect, is commenced relating to any Guarantor; (iv)
any Guarantor is adjudicated insolvent or bankrupt; (v) any order of relief or
other order approving any such case or proceeding is entered by a court of
competent jurisdiction; (vi) any Guarantor makes a general assignment for the
benefit of creditors; (vii) any Guarantor shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts generally as they
become due; (viii) any Guarantor shall call a meeting of its creditors with a
view to arranging a composition or adjustment of its debts; (ix) any Guarantor
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or (x) any corporate action shall be taken
by any Guarantor for the purpose of effecting any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.
[Signature on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
HUB LA PROPERTIES TRUST
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB REALTY COLLEGE PARK, INC.
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB REALTY COLLEGE PARK I, LLC
By: Hub Management, Inc.
----------------------------------------------
Name: John A. Mannix
Title: President
By: Hub Realty College Park, Inc.
----------------------------------------------
Name: John A. Mannix
Title: President
HUB ACQUISITION TRUST
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
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1735 MARKET STREET PROPERTIES TRUST
By:_________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HEALTH AND RETIREMENT PROPERTIES
INTERNATIONAL, INC.
By:_________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB MANAGEMENT, INC.
By:_________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB REALTY GOLDEN, INC.
By:_________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB REALTY FUNDING, INC.
By:_________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB RI PROPERTIES TRUST
By:_________________________________________
Name: John Popeo
Title: Treasurer and Secretary
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HUB WOODMONT INVESTMENT TRUST
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
HUB WOODMONT LIMITED LIABILITY COMPANY
By: Hub Woodmont Investment Trust, its Manager
-------------------------------
Name: John A. Mannix
Title: President
NINE PENN CENTER PROPERTIES TRUST
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
INDEMNITY COLLECTION CORPORATION
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
RESEARCH PARK PROPERTIES TRUST
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
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ROSEDALE PROPERTIES TRUST
By:___________________________________________
Name: John Popeo
Title: Treasurer and Secretary
4 MAGUIRE ROAD REALTY TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
47 HARVARD STREET REAL ESTATE TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
HRPT MEDICAL BUILDINGS REALTY TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
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MOB REALTY TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
PUTNAM PLACE REALTY TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
145 UNIVERSITY AVENUE REALTY TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
HUB MA REALTY TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
CAUSEWAY HOLDINGS, INC.
By:___________________________________________
Name: John Popeo
Title: Trustee
HUB REALTY KANSAS CITY, INC.
By:___________________________________________
Name: John Popeo
Title: Trustee
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HUB PROPERTIES TRUST
By:___________________________________________
Name: John Popeo
Title: Trustee
HUB LA LIMITED PARTNERSHIP
By: Hub LA Properties Trust,
its General Partner
----------------------------------
Name: John A. Mannix
Title: President
NINE PENN CENTER ASSOCIATES L.P.
By: Nine Penn Center Properties Trust,
its General Partner
----------------------------------------------
Name: John A. Mannix
Title: President
Address for Notices:
c/o HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attention: John Popeo
Telecopy Number:(617) 928-1305
Telephone Number:(617) 332-3990
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ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ____________, ____, executed and
delivered by ______________________, a _____________ (the "New Subsidiary"), in
favor of (a) FIRST UNION NATIONAL BANK, in its capacity as Agent (the "Agent")
for the Lenders under that certain Credit Agreement dated as of April __, 2001
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among HRPT Properties Trust (the "Borrower"), the
financial institutions party thereto and their assignees under Section 12.5
thereof (the "Lenders"), the Agent, and the other parties thereto, and (b) the
Lenders and the Swingline Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and
the Swingline Lender have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Borrower owns, directly or indirectly, at least a majority
of the issued and outstanding Equity Interests in the New Subsidiary;
WHEREAS, the Borrower, the New Subsidiary, and the existing Guarantors,
though separate legal entities, are mutually dependent on each other in the
conduct of their respective businesses as an integrated operation and have
determined it to be in their mutual best interests to obtain financing from the
Agent, the Lenders and the Swingline Lender through their collective efforts;
WHEREAS, the New Subsidiary acknowledges that it will receive direct
and indirect benefits from the Agent, the Lenders and the Swingline Lender
making such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, the New Subsidiary is willing to guarantee the
Borrower's obligations to the Agent, the Lenders and the Swingline Lender on the
terms and conditions contained herein; and
WHEREAS, the New Subsidiary's execution and delivery of this Agreement
is a condition to the Agent, the Lenders and the Swingline Lender continuing to
make such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Subsidiary, the New
Subsidiary agrees as follows:
Section 1. Accession to Guaranty. The New Subsidiary hereby agrees that
it is a "Guarantor" under that certain Guaranty dated as of April 30, 2001 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Guaranty"), made by each Subsidiary of the Borrower a party thereto in favor of
the Agent, the Lenders and the Swingline Lender and assumes all obligations of a
"Guarantor" thereunder, all as if the New Subsidiary had been an
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original signatory to the Guaranty. Without limiting the generality of the
foregoing, the New Subsidiary hereby:
(a) irrevocably and unconditionally guarantees the due and punctual
payment and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations (as defined in the Guaranty);
(b) makes to the Agent, the Lenders and the Swingline Lender as of the
date hereof each of the representations and warranties contained in Section 5 of
the Guaranty and agrees to be bound by each of the covenants contained in
Section 6 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the New Subsidiary has caused this Accession
Agreement to be duly executed and delivered under seal by its duly authorized
officers as of the date first written above.
NEW SUBSIDIARY]
y:___________________________________________
Name:____________________________________
Title:___________________________________
ddress for Notices:
/o HRPT Properties Trust
00 Centre Street
ewton, Massachusetts 02458
ttention:________
elecopy Number:(___) ___-____
elephone Number:(617) 332-3990
Accepted:
FIRST UNION NATIONAL BANK,
as Agent
By:
-------------------------------
Name:
------------------------
Title:
-----------------------
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