UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 23, 2001
AMONG
GREAT LAKES REIT, L.P., AS BORROWER
AND
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
AND
BANK ONE, NA,
AND
CERTAIN OTHER BANKS,
AS LENDERS
AND
BANK ONE, NA,
AS AGENT
TABLE OF CONTENTS
Article I Definitions And Accounting Terms.....................................................................28
1.1 Definitions.............................................................................................28
1.2 Financial Standards.....................................................................................44
Article II The Facility........................................................................................45
2.1 The Facility............................................................................................45
2.2 Final Principal Payment and Extension Option............................................................45
2.3 Advances funded by the Lenders..........................................................................46
2.4 Evidence of Credit Extensions...........................................................................46
2.5 Ratable Loans...........................................................................................46
2.6 Applicable Margins and Facility Fee Rate................................................................46
2.7 Facility Fee............................................................................................47
2.8 Other Fees..............................................................................................47
2.9 Minimum Amount of Each Advance..........................................................................47
2.10 Interest..............................................................................................47
2.11 Selection of Rate Options and LIBOR Interest Periods..................................................48
2.12 Method of Payment.....................................................................................50
2.13 Default...............................................................................................50
2.14 Lending Installations.................................................................................50
2.15 Non-Receipt of Funds by Agent.........................................................................51
2.16 Swingline Loans.......................................................................................51
2.17 Application of Moneys Received........................................................................52
2.18 Voluntary Reduction of Aggregate Commitment Amount....................................................53
2.19 Future Increase in Aggregate Commitment...............................................................53
2.20 Termination of Existing Facility......................................................................53
Article III Letter of Credit Subfacility.......................................................................54
3.1 Obligation to Issue.....................................................................................54
3.2 Types and Amounts.......................................................................................54
3.3 Conditions..............................................................................................54
3.4 Procedure for Issuance of Facility Letters of Credit....................................................55
3.5 Reimbursement Obligations; Duties of Issuing Bank.......................................................56
3.6 Participation...........................................................................................56
3.7 Payment of Reimbursement Obligations....................................................................57
3.8 Compensation for Facility Letters of Credit.............................................................58
3.9 Letter of Credit Collateral Account.....................................................................59
Article IV Change In Circumstances.............................................................................59
4.1 Yield Protection........................................................................................59
4.2 Changes in Capital Adequacy Regulations.................................................................60
4.3 Availability of LIBOR Advances..........................................................................61
4.4 Funding Indemnification.................................................................................61
4.5 Taxes...................................................................................................61
4.6 Lender Statements; Survival of Indemnity................................................................63
4.7 Removal or Replacement of a Lender......................................................................63
Article V Conditions Precedent.................................................................................65
5.1 Conditions Precedent to Closing.........................................................................65
5.2 Conditions Precedent to Subsequent Advances.............................................................66
Article VI Representations And Warranties......................................................................67
6.1 Existence...............................................................................................67
6.2 Corporate/Partnership Powers............................................................................68
6.3 Power of Officers.......................................................................................68
6.4 Government and Other Approvals..........................................................................68
6.5 Solvency................................................................................................68
6.6 Compliance With Laws and Agreements.....................................................................68
6.7 Enforceability of Agreement.............................................................................68
6.8 Title to Property.......................................................................................68
6.9 Litigation..............................................................................................69
6.10 Events of Default.....................................................................................69
6.11 Investment Company Act of 1940........................................................................69
6.12 Public Utility Holding Company Act....................................................................69
6.13 Regulation U..........................................................................................69
6.14 No Material Adverse Change............................................................................69
6.15 Financial Information.................................................................................69
6.16 Factual Information...................................................................................69
6.17 ERISA.................................................................................................70
6.18 Taxes.................................................................................................70
6.19 Environmental Matters.................................................................................70
6.20 Insurance.............................................................................................71
6.21 No Brokers............................................................................................71
6.22 No Violation of Usury Laws............................................................................71
6.23 Not a Foreign Person..................................................................................71
6.24 No Trade Name.........................................................................................71
6.25 Subsidiaries..........................................................................................72
6.26 Properties............................................................................................72
6.27 Relationship of the Borrower..........................................................................73
6.28 No Side Deals.........................................................................................74
Article VII Financial Covenants................................................................................74
7.1 Minimum Consolidated Net Worth..........................................................................74
7.2 Maximum Adjusted Leverage Ratio.........................................................................74
7.3 Minimum Consolidated Interest Coverage Ratio............................................................74
7.4 Minimum Fixed Charge Coverage Ratio.....................................................................74
7.5 Maximum Unencumbered Asset Coverage Ratio...............................................................74
7.6 Minimum Unencumbered Asset Income to Unsecured Interest.................................................74
7.7 Maximum Secured Debt to Gross Asset Value...............................................................74
7.8 Maximum Dividend Payout Ratio...........................................................................74
Article VIII Affirmative Covenants.............................................................................75
8.1 Notices.................................................................................................75
8.2 Financial Statements, Reports, Etc......................................................................75
8.3 Existence and Conduct of Operations.....................................................................78
ii
8.4 Maintenance of Properties...............................................................................79
8.5 Insurance...............................................................................................79
8.6 Payment of Obligations..................................................................................80
8.7 Compliance with Laws....................................................................................80
8.8 Adequate Books..........................................................................................80
8.9 ERISA...................................................................................................80
8.10 Maintenance of Status.................................................................................80
8.11 Use of Proceeds.......................................................................................80
8.12 Pre-Acquisition Environmental Investigations..........................................................80
8.13 New Subsidiaries......................................................................................80
8.14 Distributions.........................................................................................81
8.15 Senior Management of Borrower.........................................................................81
Article IX Negative Covenants..................................................................................81
9.1 Change in Business......................................................................................81
9.2 Control of General Partner..............................................................................82
9.3 Change of Borrower Ownership............................................................................82
9.4 Use of Proceeds.........................................................................................82
9.5 Transfers of Unencumbered Assets........................................................................82
9.6 Liens...................................................................................................82
9.7 Regulation U............................................................................................83
9.8 Mergers and Dispositions................................................................................83
9.9 Negative Pledge.........................................................................................83
9.10 Variable Rate Debt....................................................................................83
9.11 Borrower's Partnership Agreement......................................................................83
9.12 General Partner's Assets..............................................................................84
Article X Defaults.............................................................................................84
10.1 Nonpayment of Principal...............................................................................84
10.2 Certain Covenants.....................................................................................84
10.3 Nonpayment of Interest and Other Obligations..........................................................84
10.4 Cross Default.........................................................................................84
10.5 Loan Documents........................................................................................84
10.6 Representation or Warranty............................................................................84
10.7 Covenants, Agreements and Other Conditions............................................................84
10.8 No Longer General Partner.............................................................................85
10.9 Material Adverse Change...............................................................................85
10.10 Bankruptcy............................................................................................85
10.11 Legal Proceedings.....................................................................................85
10.12 ERISA.................................................................................................86
10.13 Failure to Satisfy Judgments..........................................................................86
10.14 Environmental Remediation.............................................................................86
10.15 Failure to maintain REIT Status.......................................................................86
Article XI Acceleration, Waivers Amendments And Remedies.......................................................86
11.1 Acceleration..........................................................................................86
11.2 Preservation of Rights; Amendments....................................................................87
iii
Article XII The Agent..........................................................................................87
12.1 Appointment...........................................................................................87
12.2 Powers................................................................................................87
12.3 General Immunity......................................................................................88
12.4 No Responsibility for Loans, Recitals, etc............................................................88
12.5 Action on Instructions of Lenders.....................................................................88
12.6 Employment of Agents and Counsel......................................................................88
12.7 Reliance on Documents.................................................................................89
12.8 Agent's Reimbursement and Indemnification.............................................................89
12.9 Rights as a Lender....................................................................................89
12.10 Lender Credit Decision................................................................................90
12.11 Successor Agent.......................................................................................90
12.12 Notice of Defaults....................................................................................90
12.13 Requests for Approval.................................................................................91
12.14 Copies of Documents...................................................................................91
12.15 Defaulting Lenders....................................................................................91
12.16 Borrower's Default; Enforcement.......................................................................91
12.17 Workout...............................................................................................92
12.18 Bankruptcy of Borrower................................................................................92
12.19 Relationship of Parties...............................................................................92
12.20 Counsel...............................................................................................92
Article XIII BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS.................................................93
13.1 Successors and Assigns................................................................................93
13.2 Participations........................................................................................93
13.3 Assignments...........................................................................................94
13.4 Dissemination of Information..........................................................................95
13.5 Tax Treatment.........................................................................................95
Article XIV GENERAL PROVISIONS.................................................................................95
14.1 Survival of Representations...........................................................................95
14.2 Governmental Regulation...............................................................................95
14.3 Taxes.................................................................................................95
14.4 Headings..............................................................................................95
14.5 No Third Party Beneficiaries..........................................................................95
14.6 Expenses: Indemnification.............................................................................95
14.7 Severability of Provisions. .........................................................................96
14.8 Nonliability of the Lenders. ........................................................................96
14.9 Choice of Law. ......................................................................................96
14.10 Consent to Jurisdiction...............................................................................97
14.11 Waiver of Jury Trial..................................................................................97
14.12 Successors and Assigns................................................................................97
14.13 Entire Agreement; Modification of Agreement...........................................................97
14.14 Dealings with the Borrower............................................................................98
14.15 Set-Off...............................................................................................98
14.16 Counterparts..........................................................................................99
14.17 Discretion............................................................................................99
iv
Article XV NOTICES...............................................................................................99
15.1 Giving Notice.........................................................................................99
15.2 Change of Address.....................................................................................99
v
UNSECURED REVOLVING CREDIT AGREEMENT
THIS UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of March 23,
2001, by and among the following:
GREAT LAKES REIT, L.P., a Delaware limited partnership having its principal
place of business at 823 Commerce Drive, Suite 300, Oak Brook, Illinois 60521
("BORROWER"), the sole general partner of which is Great Lakes REIT, a Maryland
real estate investment trust;
BANK ONE, NA ("BANK ONE"), a national bank organized under the laws of the
United States of America having its main office at One Bank One Plaza, Chicago,
Illinois 60670;
Bank One, as Agent ("AGENT") for the Lenders (as defined below); and
The Lenders identified on the signature pages to this Agreement.
RECITALS
A. Borrower is primarily engaged in the business of acquiring, developing,
owning and operating suburban office properties.
B. The Borrower has requested that the Lenders party hereto make loans
available to the Borrower in the aggregate principal amount of $150,000,000, or
such higher amount up to $200,000,000 as may be committed by Lenders,
outstanding from time to time pursuant to the terms of this Agreement (the
"FACILITY"). The Agent and the Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS. As used in this Agreement, the following terms have the
respective meanings set forth below:
"ADJUSTED ALTERNATE BASE RATE" means a floating interest rate equal to the
Alternate Base Rate plus the Applicable Margin, changing when and as the
Alternate Base Rate and Applicable Margin change.
"ADJUSTED LIBOR RATE" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR
Rate applicable to such LIBOR Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such LIBOR Interest
Period, plus (ii) the Applicable Margin in effect from time to time during such
LIBOR Interest Period.
"AGENT" means Bank One, acting as contractual representative for the
Lenders pursuant to ARTICLE XII in connection with the transactions contemplated
by this Agreement, and not in its
individual capacity as a Lender, and its successors in such capacity appointed
pursuant to ARTICLE XII.
"ADVANCE" means a Loan to the Borrower hereunder by one or more of the
Lenders pursuant to SECTION 2.l(a) hereof (including Swingline Loans), including
the initial Advance and all subsequent Advances, whether such Advances are, from
time to time, Alternate Base Rate Advances, LIBOR Advances or Swingline Loans.
"AFFILIATE" means any Person directly or indirectly controlling, controlled
by or under direct or indirect common control with any other Person. A Person
shall be deemed to control another Person if the controlling Person owns (i) ten
percent (10%) or more of any class of voting securities of the controlled Person
or possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether through
ownership of stock, by contract or otherwise, or (ii) a general partnership
interest, a managing member's interest in a limited liability company or a
limited partnership interest or preferred stock (or other ownership interest)
representing ten percent (10%) or more of the outstanding limited partnership
interests, preferred stock or other ownership interests of such Person.
"AGGREGATE COMMITMENT" means, as of any date, the sum of all of the
Lenders' then-current Commitments, which shall initially be $150,000,000,
subject to the Borrower's right to increase the Aggregate Commitment up to
$200,000,000 as described in SECTION 2.19 hereof and the Borrower's right to
reduce the Aggregate Commitment pursuant to SECTION 2.18.
"AGREEMENT" means this Unsecured Revolving Credit Agreement and all
amendments, modifications and supplements hereto.
"AGREEMENT EXECUTION DATE" shall mean March 23, 2001, the effective date of
this Agreement.
"ALLOCATED FACILITY AMOUNT" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans), and the then Facility
Letter of Credit Obligations.
"ALTERNATE BASE RATE" " means, with respect to any day, a floating, per
annum interest rate equal to the greater of (i) the Prime Rate for such day and
(ii) the sum of (A) the Federal Funds Effective Rate most recently determined by
the Agent to such day plus (B) 0.50% per annum.
"ALTERNATE BASE RATE ADVANCE" means an Advance that bears interest at the
Adjusted Alternate Base Rate.
"APPLICABLE LAWS" is defined in SECTION 6.26(b) hereof.
"APPLICABLE MARGIN" means the applicable margin set forth in the table in
SECTION 2.6 used in calculating the interest rate applicable to the various
types of Advances, which shall vary from time to time in accordance with the
Borrower's Leverage Ratio, all in the manner set forth in SECTION 2.6.
"APPROVED GROUND LEASES" means (i) the ground lease covering the Project
commonly known as Firstar Tower located at 175 South Third Street in Columbus,
Ohio and (ii) those
2
ground leases which affect Projects subsequently acquired by the Borrower or its
Subsidiaries and which (A) are Financeable Ground Leases and (B) do not cause
the aggregate Real Estate Asset Value attributable to all Projects then included
in determining Gross Asset Value which are subject to a ground lease to
collectively exceed twenty percent (20%) of the total Gross Asset Value.
"ARRANGER" means Banc One Capital Markets, Inc., as lead arranger and sole
book runner.
"BANK ONE" means BANK ONE, NA, having its main office in Chicago, in its
individual capacity.
"BORROWER" means Great Lakes REIT, L.P., together with its permitted
successors and assigns.
"BORROWING DATE" means a Business Day on which an Advance is made to the
Borrower.
"BORROWING NOTICE" is defined in SECTION 2.11(a) hereof.
"BUILD TO SUIT PROJECT" means a real estate project under development not
yet owned by a member of the Consolidated Group (although the underlying land
may already be owned by a Member of the Consolidated Group) but which a member
of the Consolidated Group has contracted to purchase upon completion and with
respect to which the construction related conditions to the purchaser's
obligation to purchase (e.g. substantial completion and/or issuance of a
certificate of occupancy) have not yet been satisfied. Build to Suit Project
shall also include other similar arrangements which are the functional
equivalent of a project of the type described in this definition but which do
not precisely satisfy the requirements of this definition (i.e. other projects
which would commonly be described as a "build to suit" project or which create
an obligation to own or purchase a real estate project that does not appear on
the balance sheet of such member of the Consolidated Group, even if such other
projects are not precisely described by the language in this definition). For
purposes of establishing their liability and value hereunder, Build to Suit
Projects shall be deemed to represent a financial obligation equal to the
purchase price payable for such project upon completion and an asset having an
imputed value equal to such purchase price.
"BUSINESS DAY" means a day, other than a Saturday, Sunday or holiday, on
which banks are open for business in Chicago, Illinois and in San Francisco,
California and, where such term is used in reference to the selection or
determination of the Adjusted LIBOR Rate, in London, England.
"CAPITAL EXPENDITURE RESERVE AMOUNT" means, for any quarter, $1.25 per
square foot of Leased Space as of the last day of the quarter.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent equity ownership interests in a Person which is not a
corporation and any and all warrants or options to purchase any of the
foregoing.
"CASH EQUIVALENTS" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by S&P's or P-1 or better by
3
Moody's, (iii) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000, or (iv) shares of any money market mutual fund rated at
least AAA or the equivalent by S&P or at least Aaa or the equivalent by Moody's.
"CODE" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"COMMITMENT" means the obligation of each Lender, subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties herein, to make Advances (including Advances to repay draws under
Facility Letters of Credit Obligations), and to participate in Facility Letters
of Credit, in an amount not exceeding in the aggregate the amount set forth
opposite its signature below, or the amount stated in any subsequent amendment
hereto, as such amount may be modified from time to time pursuant to the terms
hereof.
"COMPLETED BUILD TO SUIT PROJECT" means a Build to Suit Project for which
the construction related conditions to the purchaser's obligation to purchase
(e.g. substantial completion and/or issuance of a certificate of occupancy) have
been satisfied.
"CONSOLIDATED GROUP" means the Borrower, the General Partner and any other
subsidiary partnerships or entities of either of them which are required under
GAAP to be consolidated with the Borrower and the General Partner for financial
reporting purposes.
"CONSOLIDATED GROUP SHARE" means with respect to any Investment Affiliate,
the percentage of the total equity ownership interests held by the Consolidated
Group in the aggregate, in such Investment Affiliate, determined by calculating
the greater of (i) the percentage of the issued and outstanding stock,
partnership interests or membership interests in such Investment Affiliate held
by the Consolidated Group in the aggregate and (ii) the percentage of the total
book value of such Investment Affiliate that would be received by the
Consolidated Group in the aggregate, upon liquidation of such Investment
Affiliate after repayment in full of all Indebtedness of such Investment
Affiliate.
"CONSOLIDATED NET WORTH" means, as of any date of determination, the
shareholders' equity as shown on the balance sheet of the General Partner as of
that date.
"CONSOLIDATED SECURED DEBT" means, as of any date of determination, (i) the
aggregate principal amount of all Indebtedness of the Consolidated Group, plus
the Consolidated Group Share of all Indebtedness of any Investment Affiliate,
whether recourse or non-recourse, all of which Indebtedness is outstanding at
such date and secured by a Lien on any asset or Capital Stock, including without
limitation loans secured by mortgages, stock, or partnership interests, plus,
without duplication, (ii) the aggregate principal amount of all Indebtedness of
any Investment Affiliate which Indebtedness is outstanding at such date and not
secured by a Lien on any asset or Capital Stock but only to the extent same is
recourse to the Borrower or any other entity in the Consolidated Group, plus
(iii) the amount, if any, by which aggregate unsecured Indebtedness of
Subsidiaries of the General Partner or Subsidiaries of the Borrower exceeds
$5,000,000.
"CONSOLIDATED TOTAL INDEBTEDness" means, as of any date of determination,
(i) all Indebtedness of the Consolidated Group outstanding at such date, after
eliminating intercompany
4
items, plus (ii) the Consolidated Group Share of any Indebtedness of any
Investment Affiliate outstanding at such date, without duplication.
"CONSOLIDATED UNSECURED DEBT" means, as of any date of determination, the
aggregate principal amount of all Indebtedness of the Consolidated Group, plus
the Consolidated Group Share of all Indebtedness of any Investment Affiliate,
all of which Indebtedness is outstanding at such date, but excluding that
portion of the Consolidated Secured Debt described under clause (i) of such
definition.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with all or any of the entities in the Consolidated Group, are
treated as a single employer under Sections 414(b) or 414(c) of the Code.
"CREDIT PARTIES" means, collectively, Borrower and each Guarantor.
"DEBT SERVICE" means for any period, (a) Interest Expense for such period
plus (b) the aggregate amount of regularly scheduled or mandatory principal
payments of Indebtedness (excluding optional prepayments and balloon principal
payments due on maturity in respect of any Indebtedness) required to be made
during such period by the Borrower, or any entity in the Consolidated Group
(and, if such period is less than a full twelve month period, annualized by
taking the sum of all of the payments required to be made during such period and
during any immediately subsequent periods required to create a full twelve month
test period), plus (c) the Consolidated Group Share of all such regularly
scheduled or mandatory principal payments required to be made during such period
by any Investment Affiliate on Indebtedness (excluding optional prepayments and
balloon principal payments due on maturity in respect of any Indebtedness) taken
into account in calculating Interest Expense (and, if such period is less than a
full twelve month period, annualized by taking the sum of all of the payments
required to be made during such period and during any immediately subsequent
periods required to create a full twelve month test period).
"DEFAULT" means an event which, with notice or lapse of time or both, would
become an Event of Default.
"DEFAULT RATE" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
"DEFAULTING LENDER" means any Lender which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Agent; PROVIDED that if such Lender cures such failure or
refusal, such Lender shall cease to be a Defaulting Lender.
"DOLLARS" and "$" mean United States Dollars.
"EBITDA" means, as to any period, net income, adjusted by excluding gains
and losses from property sales, debt restructurings and property write-downs
(and reduced to eliminate any income from Investment Affiliates), as reported by
the Consolidated Group in accordance with GAAP, plus Interest Expense,
depreciation, amortization and income tax (if any) expense plus a
5
percentage of such income (adjusted as described above) of any Investment
Affiliate equal to the Consolidated Group Share in such Investment Affiliate
(provided that no item of income or expense shall be included more than once in
such calculation even if it falls within more than one of the foregoing
categories). For purposes of this definition, items of income and expense from
any Properties acquired or sold during the period in question shall be excluded.
"EFFECTIVE DATE" means each Borrowing Date and, if no Borrowing Date has
occurred in the preceding calendar month, the first Business Day of each
calendar month.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized under the laws of
the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000, (ii) 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 a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the United States, or
(iii) a Person that is primarily engaged in the business of commercial banking
and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of a Person of which
a Lender is a Subsidiary, or (C) a Person of which a Lender is a Subsidiary.
"ELIGIBLE JOINT VENTURES" means those joint ventures (i) in which any
entity included in the Consolidated Group either is the managing or co-managing
general partner or equivalent, or has an equity interest equal or greater than
fifty percent (50%), AND (ii) in which such entity included in the Consolidated
Group has the ability, in its sole discretion, to sell, encumber or otherwise
transfer any interest in the assets of such joint venture, AND (iii) for which
no restrictions exist on the upstreaming of Net Operating Income, and (iv) which
have agreed to maintain no Indebtedness.
"ELIGIBLE LAND" means any Land for which all permits and other approvals
required of any applicable governmental authority or otherwise for the
development thereof have been received.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any governmental authority having jurisdiction over the
Borrower, its Subsidiaries or Investment Affiliates, or their respective assets,
and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective Properties or other assets.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
"EVENT OF DEFAULT" means any event set forth in ARTICLE X hereof.
"EXCLUDED TAXES" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
6
"EXTENSION FEE" means 0.15% of the amount of the Aggregate Commitment for
which the Maturity Date is being extended in accordance with SECTION 2.2
"EXTENSION REQUEST" is defined in SECTION 2.2 hereof.
"FACILITY" means the unsecured revolving credit facility described in
SECTION 2.1.
"FACILITY FEE" is defined in SECTION 2.7.
"FACILITY FEE RATE" means the applicable rate set forth in the table in
SECTION 2.6 used in calculating the Facility Fee, which shall vary from time to
time in accordance with the Borrower's Leverage Ratio, all in the manner set
forth in SECTION 2.6.
"FACILITY LETTER OF CREDIT" means a Letter of Credit issued hereunder.
"FACILITY LETTER OF CREDIT FEE" is defined in SECTION 3.8.
"FACILITY LETTER OF CREDIT OBLIGATIONS" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, without
duplication, of the Borrower with respect to Facility Letters of Credit,
including the aggregate undrawn face amount of the then outstanding Facility
Letters of Credit, but not including Reimbursement Obligations.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"FINANCEABLE GROUND LEASE" means a ground lease satisfactory to the
Required Lenders and the Agent's counsel in their reasonable discretion, which
must provide protections for a potential leasehold mortgagee ("MORTGAGEE") which
include, among other things (i) a remaining term of no less than 25 years from
the Agreement Execution Date, (ii) that the lease will not be terminated until
the Mortgagee has received notice of a default and has had a reasonable
opportunity to cure or complete foreclosure, and fails to do so, (iii) a new
lease on the same terms to the Mortgagee as tenant if the ground lease is
terminated for any reason, (iv) non-merger of the fee and leasehold estates, (v)
free transferability of the tenant's interest under the ground lease and (vi)
that insurance proceeds and condemnation awards (from the fee interest as well
as the leasehold interest) will be applied pursuant to the terms of a leasehold
mortgage.
"FIXED CHARGES" means, for any quarter, the sum of (i) Debt Service, (ii)
the Capital Expenditure Reserve Amount, (iii) Preferred Dividends, and (iv)
ground lease payments, each calculated on an annualized basis.
"FUNDED PERCENTAGE" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of
7
which is the total amount of the Aggregate Commitment disbursed and outstanding
to Borrower by all of the Lenders at such time.
"FUNDS FROM OPERATIONS" shall mean GAAP net income of the Consolidated
Group, plus a percentage of GAAP net income of any Investment Affiliate equal to
the Consolidated Group Share of such Investment Affiliate, all of which income
shall be adjusted by (i) excluding gains and losses from property sales, debt
restructurings and property write-downs and adjusted for the non-cash effect of
straight-lining of rents, (ii) straight-lining various ordinary operating
expenses which are payable less frequently than monthly (e.g., real estate
taxes) and (iii) adding back depreciation, amortization and all non-cash items.
In calculating Funds From Operations, no deduction shall be made from net income
for closing costs and other one-time charges associated with the formation and
capitalization of such Person.
"GAAP" means generally accepted accounting principles in the United States
of America consistent with those utilized in preparing the audited financial
statements of the Borrower required hereunder and applied consistently from
period to period.
"GENERAL PARTNER" means Great Lakes REIT, a Maryland real estate investment
trust whose common shares of beneficial interest are listed on the New York
Stock Exchange, and which is qualified as a real estate investment trust under
the Code. The General Partner is the sole general partner of Borrower.
"GROSS ASSET VALUE" means, for the Consolidated Group, for any quarter, (A)
the sum of (i) total unrestricted cash and Cash Equivalents, plus the
Consolidated Group Share of the unrestricted cash and Cash Equivalents of any
Investment Affiliate, plus (ii) Real Estate Asset Value, plus (iii) Eligible
Land, valued at the lesser of cost or market value, provided that in no event
shall the aggregate amount added to Gross Asset Value pursuant to this clause
(iii) exceed ten percent (10%) of the Gross Asset Value, plus (iv) an amount
equal to fifty percent (50%) of the cost of all 50% Preleased Assets Under
Development and one hundred percent (100%) of the cost of all 75% Preleased
Assets Under Development, provided, however, that in no event shall the
aggregate amount added to Gross Asset Value pursuant to this clause (iv) exceed
fifteen percent (15%) of the Gross Asset Value, less (B) the Capital Expenditure
Reserve Amount for such quarter.
"GROSS REVENUES" means total revenues, calculated in accordance with GAAP.
"GUARANTEE OBLIGATION" means as to any Person (the "guaranteeing person"),
any obligation (determined without duplication) of the guaranteeing person (or
any other Person [including, without limitation, any bank under any letter of
credit] if the guaranteeing person has issued a reimbursement, counter indemnity
or similar obligation in favor of such other Person) guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
8
such primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the maximum stated amount of the primary obligation relating to such
Guarantee Obligation (or, if less, the maximum stated liability set forth in the
instrument embodying such Guarantee Obligation), provided, that in the absence
of any such stated amount or stated liability, the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as reasonably determined by the Borrower in good
faith, subject to the Agent's approval, which approval shall not be unreasonably
withheld.
"GUARANTOR" means, collectively, the General Partner, each Subsidiary
listed as a Credit Party on SCHEDULE 6.1 attached hereto, and each other Person
that executes and delivers the Guaranty from time to time.
"GUARANTY" means the Guaranty or Guaranties executed and delivered in the
form attached hereto as EXHIBIT A, singly or collectively as the context
requires.
"HEDGING AGREEMENTS" means interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements or other
interest, exchange rate or commodity price hedging agreements.
"INDEBTEDNESS" of any Person at any date means without duplication (i) all
indebtedness of such Person for borrowed money, (ii) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness for
the purposes of GAAP, (iii) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (iv) all obligations
of such Person under financing leases and capital leases, (v) all obligations of
such Person in respect of acceptances issued or created for the account of such
Person, (vi) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated indebtedness of the Consolidated Group, Guarantee
Obligations of any member of the Consolidated Group in respect of primary
obligations of any other member of the Consolidated Group so as to avoid double
counting), (vii) all reimbursement obligations of such Person for letters of
credit and other contingent liabilities, (viii) all liabilities secured by any
Lien (other than Liens for taxes not yet due and payable) on any property owned
by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof, (ix) any repurchase obligation or liability of
such Person or any of its Subsidiaries with respect to accounts or notes
receivable sold by such Person or any of its Subsidiaries, (x) any other
transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheet of such Person (e.g. "synthetic leases" and other transactions which are
functional equivalents of borrowing, but not typical "operating leases" which
are not substantially economically equivalent to ownership of property
encumbered by debt), (xi) Senior Preferred Stock, (xii) such Person's allocable
percentage of debt of any Investment Affiliates equal to the greater of (a) the
percentages of the principal amount of such debt(s) for which such Person is
liable as a general partner or otherwise and (b) the applicable economic
interest in such Investment Affiliate(s) held by such Person, in the aggregate,
(xiii) all obligations to make advances and contributions of a liquidated amount
to
9
Investment Affiliates, (xiv) to the extent not included in Interest Expense all
obligations to make payments under any Hedging Agreements, and (xv) all
obligations of such Person to purchase a Completed Build To Suit Project.
"INSOLVENCY" means insolvency as defined in the United States Bankruptcy
Code, as amended. "Insolvent" when used with respect to a Person, shall refer to
a Person who satisfies the definition of Insolvency.
"INTEREST EXPENSE" means, for any period, the sum (calculated on an
annualized basis) of (i) all interest expense of the Consolidated Group
determined in accordance with GAAP, plus (ii) capitalized interest not covered
by an interest reserve from a loan facility, plus (iii) the allocable portion
(based on liability) of any accrued or paid interest incurred on any obligation
for which any entity in the Consolidated Group is wholly or partially liable
under repayment, interest carry, or performance guarantees, or other relevant
liabilities, plus (iv) the Consolidated Group Share of any accrued or paid
interest incurred on any Indebtedness of any Investment Affiliate, whether
recourse or non-recourse, provided that no expense shall be included more than
once in such calculation even if it falls within more than one of the foregoing
categories.
"INVESTMENT AFFILIATE" means any Person in which any entity in the
Consolidated Group, directly or indirectly, has an ownership interest but which
is not a member of the Consolidated Group.
"ISSUANCE DATE" is defined in SECTION 3.4(a)(2).
"ISSUANCE NOTICE" is defined in SECTION 3.4(c).
"ISSUING BANK" means, with respect to each Facility Letter of Credit, the
Lender which issues such Facility Letter of Credit. The Agent shall be the sole
Issuing Bank, provided that, if the Agent is unable to issue Facility Letters of
Credit as a result of SECTION 3.2(i) or SECTION 3.3(ii) hereof, the Borrower may
select another Lender to act as the Issuing Bank by written notice to the Agent
and with the approval of such other Lender.
"LAND" means any parcel of real property wholly-owned in fee simple of
record by any entity in the Consolidated Group or any Investment Affiliate
(provided, however, that any such parcel of an Investment Affiliate shall be
included only to the extent of Consolidated Group Share of such Investment
Affiliate), which parcel is not improved.
"LEASED SPACE" means, as of any date of determination, the total rentable
area, then leased, subleased, licensed or otherwise occupied under any written
agreement at market rates (determined as of the time such agreement was entered
into), in all of the Projects.
"LENDERS" means, collectively, Bank One and the other Persons executing
this Agreement in such capacity, or any Person which subsequently executes and
delivers any amendment hereto and becomes a party hereto in such capacity in
accordance with the terms and conditions of this Agreement and each of their
respective permitted successors and assigns. Where reference is made to "the
Lenders" in any Loan Document it shall be read to mean "all of the Lenders".
"LENDING INSTALLATION" means any U.S. office of any Lender authorized to
make loans similar to the Advances described herein.
10
"LETTER OF CREDIT" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"LETTER OF CREDIT COLLATERAL ACCOUNT" is defined in Section 3.9.
"LETTER OF CREDIT REQUEST" is defined in SECTION 3.4(a).
"LEVERAGE RATIO" means the ratio of Consolidated Total Indebtedness to
Gross Asset Value.
"LIBOR ADVANCE" means an Advance that bears interest at the Adjusted LIBOR
Rate.
"LIBOR INTEREST PERIOD" means, with respect to a LIBOR Advance, a period of
one, two, three or six months (to the extent that periods in excess of three
months are generally available from the Lenders) commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such LIBOR Interest Period
shall end on (but exclude) the day which corresponds numerically to such date
one, two, three or six months thereafter, provided, however, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such LIBOR Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If a LIBOR Interest
Period would otherwise end on a day which is not a Business Day, such LIBOR
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such LIBOR Interest Period shall end on the immediately preceding
Business Day.
"LIBOR RATE" means, with respect to a LIBOR Advance for the relevant LIBOR
Interest Period, the applicable British Bankers' Association Interest Settlement
Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00
a.m. (London time) two Business Days prior to the first day of such LIBOR
Interest Period, and having a maturity equal to such LIBOR Interest Period,
provided that, (i) if Reuters Screen FRBD is not available to the Agent for any
reason, the applicable LIBOR Base Rate for the relevant LIBOR Interest Period
shall instead be the applicable British Bankers' Association Interest Settlement
Rate for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such LIBOR Interest Period, and having a maturity
equal to such LIBOR Interest Period, and (ii) if no such British Bankers'
Association Interest Settlement Rate is available to the Agent, the applicable
LIBOR Base Rate for the relevant LIBOR Interest Period shall instead be the rate
determined by the Agent to be the rate at which Bank One or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such LIBOR Interest Period, in the approximate
amount of Bank One's relevant LIBOR Loan and having a maturity approximately
equal to such LIBOR Interest Period.
"LIEN" means any mortgage, pledge, negative pledge, hypothecation, deposit
arrangement, preference, priority, security interest, collateral assignment,
statutory or consensual lien, charge, restriction or encumbrance of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof, any filing or agreement to file a
financing statement as debtor under the Uniform Commercial Code on any property
leased to any Person under a lease which is not in the nature of a conditional
sale or title
11
retention agreement, or any subordination agreement in favor of another Person).
For purposes of this Agreement, a Lien on the Capital Stock of any Person shall
be deemed to constitute a Lien on the assets of said Person.
"LOAN" means, with respect to a Lender, such Lender's portion of any
Advance.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty and any and
all other agreements or instruments now or hereafter required by Lenders
hereunder and executed and delivered by the Borrower or any Guarantor from time
to time and evidencing, securing or guaranteeing the Obligations, as any of the
foregoing may be amended from time to time.
"MARGIN STOCK" has the meaning ascribed to it in Regulation U of the Board
of Governors of the Federal Reserve System.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the business,
Properties or condition (financial or otherwise) of the Borrower and the
Guarantors taken as a whole which could reasonably be expected to affect (i) the
ability of the Borrower or the Guarantors to perform their obligations under the
Loan Documents, or (ii) the validity or enforceability of any of the Loan
Documents.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"MATURITY DATE" means March 23, 2004, subject to extension pursuant to the
terms and conditions of SECTION 2.2 hereof, or such earlier date on which the
principal balance of the Facility and all other sums due in connection with the
Facility shall be due as a result of the acceleration of the Facility.
"MONETARY DEFAULT" means any Default involving Borrower's failure to pay
any of the Obligations when due.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"NET OPERATING INCOME" means, as to any Property for any fiscal period, an
amount equal to (a) rents and other revenues received in the ordinary course
from such Property (including proceeds of rent loss insurance), less (b) all
expenses paid or accrued related to the ownership, operation or maintenance of
such Property, excluding capital expenditures, but including, without
limitation, taxes, assessments and the like, insurance, utilities, payroll
costs, maintenance, repair and landscaping expenses, management fees, leasing
commissions and on-site marketing expenses.
"NOTE" means the promissory note payable to the order of each Lender in the
form attached hereto as EXHIBIT B (collectively, the "NOTES"), including any
amendment, modification, renewal or replacement of such promissory note.
"OBLIGATIONS" means all unpaid principal of and accrued and unpaid interest
on the Notes, all Reimbursement Obligations, all accrued and unpaid fees and all
expenses, reimbursements,
12
indemnities and other obligations of the Borrower to the Lenders or to any
Lender, the Agent, the Issuing Bank or any indemnified party hereunder arising
under the Loan Documents.
"OTHER TAXES" is defined in SECTION 4.5(ii).
"OUTSTANDING CREDIT EXPOSURE" means, as to any Lender at any time, the sum
of (i) the aggregate principal amount of its Loans (excluding Swingline Loans)
outstanding at such time, plus (ii) an amount equal to its Percentage of the
Facility Letter of Credit Obligations and the aggregate principal amount of
Swingline Loans outstanding at such time.
"PARTICIPANTS" is defined in SECTION 13.2(a) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERCENTAGE" means, with respect to each Lender, the applicable percentage
of the then-current Aggregate Commitment represented by such Lender's
then-current Commitment.
"PERMITTED LIENS" are defined in SECTION 9.6 hereof.
"PERSON" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"PLAN" means an employee benefit plan as defined in Section 3(3) of ERISA,
whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"PREFERRED DIVIDENDS" means, for any period, without duplication of such
amounts as constitute intercompany debts or distributions, the sum of (a)
dividends or distributions due and payable or accrued during such period on
preferred stock issued by General Partner or a corporate Subsidiary of the
Borrower or General Partner, and (b) distributions which are the functional
equivalent of preferred dividends (I.E., which the issuer is required to make
prior to distributions on another class or other classes of partnership or other
equity interests) and which are due and payable or accrued during such period on
preferred partnership or other equity interests issued by Borrower or any other
Subsidiary of the General Partner or Borrower.
"PRELEASED ASSETS UNDER DEVELOPMENT" means as of any date of determination,
any Project or Completed Build to Suit Project which (i) is under construction
for intended use and completion as a Project and is then either a Completed
Build to Suit Project or is treated as an asset under development under GAAP,
and (ii) has, as of such date, at least fifty percent (50%) of its projected
total rentable area leased at market rates to third party tenants similar to
those at Borrower's other properties, both such land and improvements under
construction to be valued for purposes of this Agreement at then-current book
value, as determined in accordance with GAAP; provided, however, in no event
shall Preleased Assets Under Development include any Project after the date on
which a certificate of occupancy or comparable authorization has been issued for
such Project by the applicable governmental authority. Preleased Assets Under
Development shall be comprised of two groups: "75% Preleased Assets Under
Development" which shall mean, collectively, any Preleased Assets Under
Development that has, as of such
13
date, at least seventy five percent (75%) of its projected total rentable area
so leased; and "50% Preleased Assets Under Development" which shall mean,
collectively, any Preleased Asset Under Development that has, as of such date,
less than seventy five percent (75%) but at least fifty percent (50%) of its
projected total rentable area so leased.
"PRIME RATE" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"PROJECT" means any parcel of real property (i) wholly-owned in fee simple
of record by any entity in the Consolidated Group or any Investment Affiliate,
(ii) leased by any entity in the Consolidated Group or any Investment Affiliate
under an Approved Ground Lease, or (iii) which is a Completed Build to Suit
Project which any entity in the Consolidated Group or any Investment Affiliate
is obligated to purchase, (provided, however, that any such parcel of an
Investment Affiliate shall be included only to the extent of Consolidated Group
Share of such Investment Affiliate), together with all improvements thereon,
which is fully improved for use and operated as an office property, and with
respect to which a certificate of occupancy or comparable authorization has been
issued by the applicable governmental authority.
"PROPERTY" means each parcel of real property (i) wholly-owned in fee
simple of record by any entity in the Consolidated Group or any Investment
Affiliate, (ii) leased by any entity in the Consolidated Group or any Investment
Affiliate under an Approved Ground Lease, or (iii) which is a Completed Build to
Suit Project which any entity in the Consolidated Group or any Investment
Affiliate is obligated to purchase, together with all improvements, if any,
thereon, provided, however, that any such parcel of an Investment Affiliate
shall be included only to the extent of Consolidated Group Share of such
Investment Affiliate.
"PROPERTY OPERATING INCOME" means, with respect to any Project, for any
period, revenues from rental operations net of operating expenses (computed in
accordance with GAAP but without deduction for reserves) attributable to such
Project PLUS depreciation, amortization and interest expense with respect to
such Project for such period (but only to the extent such items were actually
deducted in computing such net revenues), and, if such period is less than a
year, adjusted by straight lining various ordinary operating expenses which are
payable less frequently than once during every such period (e.g. real estate
taxes and insurance). At the request of either Borrower or the Agent, the
earnings from rental operations reported for the immediately preceding fiscal
quarter shall be adjusted to include budgeted pro forma earnings (as
substantiated to the reasonable satisfaction of the Agent) for an entire quarter
for any Project acquired or placed in service during the then-current fiscal
quarter and to exclude earnings with respect to such immediately preceding
fiscal quarter from any Project not owned as of the date of determination.
"PURCHASERS" is defined in SECTION 13.3(a) hereof.
"QUALIFIED OFFICER" means, with respect to any entity, the chief financial
officer, chief accounting officer or controller of such entity if it is a
corporation or of such entity's general partner if it is a partnership or such
other appropriate individual approved by the Agent.
14
"RATE OPTION" means the Adjusted Alternate Base Rate or the Adjusted LIBOR
Rate. The Rate Option in effect on any date shall always be the Adjusted
Alternate Base Rate unless the Borrower has properly selected the Adjusted LIBOR
Rate pursuant to SECTION 2.11 hereof.
"REAL ESTATE ASSET VALUE" means, for any quarter, the sum of (i) the
quotient of (x) EBITDA for such quarter from all Properties owned as of the
beginning of such quarter (which EBITDA shall be calculated by annualizing
actual EBITDA for such quarter, but shall exclude EBITDA, if any, attributable
to Preleased Assets Under Development), divided by (y) a capitalization rate
equal to 9.75%, plus (ii) the gross acquisition cost paid for any Property
acquired during such quarter, less customary brokerage fees and other closing
costs incurred in connection with such acquisition.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"REIMBURSEMENT OBLIGATIONS" means at any time, the aggregate of those
Obligations of the Borrower to the Lenders, the Issuing Bank and the Agent in
respect of all unreimbursed payments or disbursements made by the Lenders, the
Issuing Bank and the Agent under or in respect of the Facility Letters of
Credit.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall be
a Reportable Event regardless of the issuance of any such waivers in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the aggregate Outstanding
Credit Exposure; provided that in each case, in determining such percentage at
any given time, all then existing Defaulting Lenders will be disregarded and
excluded and the Percentages (or, if applicable, percentage of Outstanding
Credit Exposure) of Lenders shall be redetermined, for voting purposes only, to
exclude the Percentages of (or, if applicable, Outstanding Credit Exposure of)
such Defaulting Lenders.
"RESERVE REQUIREMENT" means, with respect to a LIBOR Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SENIOR PREFERRED STOCK" means the stated value of any preferred stock
issued by the General Partner which is not typical preferred stock but instead
is both (i) redeemable by the holders thereof on any fixed date or upon the
occurrence of any event and (ii) as to payment of dividends or amounts on
liquidation, either guaranteed by any direct or indirect Subsidiary of the
15
General Partner or secured by any property of the General Partner or any direct
or indirect Subsidiary of the General Partner.
"SENIOR PREFERRED STOCK EXPENSE" means, for any period for any Person, the
aggregate dividend payments due to the holders of Senior Preferred Stock of such
Person, whether payable in cash or in kind, and whether or not actually paid
during such period, in each case on an annualized basis (if such period is less
than a full fiscal year).
"SOLVENT" means, as to any Person on a particular date, that such Person
(a) has capital sufficient to carry on its existing business and transactions
and all business and transactions in which it is about to engage, (b) owns
property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay its probable liabilities
(including, without limitation, contingencies), (c) does not intend to or
believe that it will incur debts or liabilities beyond its ability to pay the
same as they mature and (d) is not Insolvent.
"SUBSIDIARY" means as to any Person, a corporation, partnership, trust or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
"SWINGLINE ADVANCES" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"SWINGLINE COMMITMENT" means the obligation of the Swingline Lender to make
Swingline Loans not exceeding $10,000,000 in the aggregate outstanding from time
to time.
"SWINGLINE LENDER" means Bank One, in its capacity as a Lender.
"SWINGLINE LOAN" means a Loan made by the Swingline Lender under the
special availability provisions described in SECTIONS 2.16 hereof.
"TAXES" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes and Other Taxes.
"TRANSFEREE" is defined in SECTION 13.4 hereof.
"UNENCUMBERED ASSET" means those Projects held by any Credit Party or any
Eligible Joint Venture which, as of any date of determination, (a) is not
subject to any Liens other than Permitted Liens (excluding Liens described in
SCHEDULE 9.6 attached hereto), (b) is not subject to any agreement (including
any organizational documents or any agreement governing Indebtedness incurred in
order to finance or refinance the acquisition of such asset) which prohibits or
limits the ability of any Credit Party or Eligible Joint Venture, as the case
may be, to create, incur, assume or suffer to exist any Lien upon any assets or
Capital Stock of such Credit Party or Eligible Joint Venture, (c) is not subject
to any agreement (including any agreement
16
governing Indebtedness incurred in order to finance or refinance the acquisition
of such asset) which (i) entitles any Person to the benefit of any Lien (other
than Permitted Liens excluding Liens described in SCHEDULE 9.6 attached hereto)
on any assets or Capital Stock of any Credit Party or Eligible Joint Venture or
(ii) would entitle any Person to the benefit of any Lien (other than Permitted
Liens excluding Liens described in SCHEDULE 9.6 attached hereto) on such assets
or Capital Stock upon the occurrence of any contingency (including, without
limitation, pursuant to an "equal and ratable" clause), (d) is located in the
United States, (e) is not the subject of any material architectural/engineering
issue or any material Environmental Law issue, as evidenced by a certification
of Borrower, and (f) is in material compliance with the applicable
representations and warranties in ARTICLE VI below; provided that that portion
of the value of any Project which would, as of the date of determination, exceed
fifteen percent (15%) of the Value of Unencumbered Assets shall be excluded
herefrom. Notwithstanding anything to the contrary contained in this Agreement,
if the Agent reasonably determines that any Project theretofore identified by
Borrower as an Unencumbered Asset may be the subject of a material
architectural/engineering issue or a material Environmental Law issue, the Agent
may (i) require Borrower to furnish a current detailed environmental assessment
or architectural/engineering assessment, as the case may be, and, if applicable,
a written estimate of any remediation costs from a qualified architect, engineer
or contractor acceptable to the Agent, in which event Borrower shall promptly
obtain and furnish the same at its own expense, and (ii) exclude any such
Property from the Unencumbered Assets at its election. No Project of any Credit
Party or Eligible Joint Venture shall be included as an Unencumbered Asset
unless both such Project and all Capital Stock (excluding Capital Stock that is
publicly traded) of such Credit Party or Eligible Joint Venture, as the case may
be, is unencumbered (other than Permitted Liens, but excluding Liens described
on SCHEDULE 9.6), and, in the case of any Credit Party other than the Borrower
and any Eligible Joint Venture, such entity has no Indebtedness for borrowed
money (other than any Indebtedness due to the Borrower or any other Credit
Party).
"VALUE OF UNENCUMBERED ASSETS" means, as of any date, (1) the amount
determined by dividing (A) the annualized Property Operating Income from each
Project which is an Unencumbered Asset as of such date based on a calculation
period which shall be the immediately preceding full fiscal quarter by (B)
9.75%, less (2) the portion of the annualized Capital Expenditure Reserve Amount
which is attributable to such Projects. If a Project has been acquired during
such a calculation period then Borrower shall be entitled to include budgeted
pro forma Property Operating Income and Capital Expenditure Reserve Amount from
such Project for the entire calculation period in the foregoing calculation. If
a Project is no longer owned as of the date of calculation, then no value shall
be included based on capitalizing Property Operating Income from such Project
and no Capital Expenditure Reserve Amount shall be deducted on account of such
Project.
The foregoing definitions shall be equally applicable to both the singular
and the plural forms of the defined terms.
1.2 FINANCIAL STANDARDS. All financial and accounting terms used and not
otherwise defined herein shall be construed in accordance with GAAP. All
financial and accounting computations and determinations required of a Person
under this Agreement shall be made, and all financial information required under
this Agreement shall be prepared, in accordance with GAAP, except as otherwise
expressly provided herein.
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ARTICLE II
THE FACILITY
2.1 THE FACILITY.
(a) Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrower contained herein,
Lenders agree, severally and not jointly, to make Advances through the Agent to
Borrower from time to time prior to the Maturity Date, provided that the making
of any such Advance will not cause the then Allocated Facility Amount to exceed
the then-current Aggregate Commitment. The Advances may be ratable Alternate
Base Rate Advances, ratable LIBOR Advances or non-pro rata Swingline Loans.
Except as provided in SECTION 2.16 hereof, each Lender shall be required to fund
only its Percentage of each such Advance and no Lender will be required to fund
any amounts which when aggregated with such Lender's Percentage of (i) all other
Advances then outstanding, (ii) all Swingline Advances and (iii) all Facility
Letter of Credit Obligations would exceed such Lender's then-current Commitment.
This facility ("FACILITY") is a revolving credit facility and, subject to the
provisions of this Agreement, Borrower may request Advances hereunder, repay
such Advances and reborrow Advances at any time prior to the Maturity Date.
(b) The Facility created by this Agreement, and that Commitment of
each Lender to lend hereunder, shall terminate on the Maturity Date, unless
sooner terminated in accordance with the terms of this Agreement.
(c) In no event shall the Aggregate Commitment exceed Two Hundred
Million Dollars ($200,000,000).
2.2 FINAL PRINCIPAL PAYMENT AND EXTENSION OPTION. Any outstanding Advances
and all other unpaid Obligations shall be paid in full by the Borrower on the
Maturity Date. The Maturity Date can be extended for a single extension period
of one (1) year upon request ("Extension Request") delivered by the Borrower to
the Agent not later than sixty (60) days, nor earlier than one hundred twenty
(120) days, prior to the Maturity Date, if, but only if (i) no Default has
occurred and is continuing at the time of such Extension Request or at the time
of the Maturity Date and Borrower shall have delivered to the Agent a
certificate to that effect both concurrently with the delivery of the Extension
Request and on the scheduled Maturity Date; (ii) the Required Lenders agree to
such extension; and (iii) Borrower pays the Extension Fee at the time of the
initially scheduled Maturity Date (which fee shall be paid to the Agent for
distribution to the Lenders which will have continuing Commitments). Promptly
upon receipt from the Borrower of any Extension Request, the Agent shall notify
each Lender of the contents of such notice. Each Lender approving an Extension
Request shall deliver its written consent (a "Consent Notice") to the Borrower
and the Agent on or prior to the fifteenth (15th) day after the date on which
such notice is sent by the Agent to the Lenders (the "Response Date"). Each
Lender may give or withhold its consent to any Extension Request in its sole
discretion. No extension shall be effective with respect to any Lender which (i)
by notice (a "Withdrawal Notice") to the Borrower and the Agent prior to the
Response Date declines to consent to such Extension Request or (ii) fails to
respond to the Borrower and the Agent prior to the Response Date (each such
Lender is referred to as a "Withdrawing Lender" and each Lender other than a
Withdrawing Lender is referred to as a "Continuing Lender"). The Agent shall
promptly notify
18
the Borrower and the Lenders whether the Extension Request was approved or
denied. If the consent of the Required Lenders to any such Extension Request is
received by the Agent on or prior to the Response Date and the other
requirements set forth above for the effectiveness of the extension are
satisfied then, (i) the new Maturity Date shall become effective on the initial
scheduled Maturity Date, (ii) the Agent shall promptly notify the Borrower and
each Lender of the new Maturity Date, (iii) the Commitments of the Continuing
Lenders shall be extended to the new Maturity Date and (iv) the Withdrawing
Lenders shall be paid in full and their Commitments shall be cancelled or
assumed by new lenders selected by the Borrower and the Arranger on the initial
scheduled Maturity Date. Upon repayment of a Withdrawing Lender's Loans, such
Lender shall be released from this Agreement, its Percentage of the Aggregate
Commitment, and all of the rights and obligations under this Agreement as of the
date of such release. Such Lender will remain responsible for all obligations
accruing prior to the date of such release and shall be entitled to all benefits
(such as indemnities from the Borrower) accruing prior to the date of such
release. Concurrently with such release, the Aggregate Commitment shall be
reduced by the Commitment of the Lender that is released and the Percentages
shall be recalculated, unless the Borrower arranges for a new lender to assume
such Lender's Commitment by assignment in accordance with the terms of this
Agreement.
2.3 Advances funded by the Lenders shall be made available to
Borrower by Agent in accordance with SECTION 2.1(A) and SECTION 2.11 hereof. The
obligation of each Lender to fund its Percentage of each ratable Advance shall
be several, and not joint or joint and several.
2.4 EVIDENCE OF CREDIT EXTENSIONS. The Advances of each Lender
outstanding at any time shall be evidenced by the Notes. Each Note executed by
the Borrower shall be in a maximum principal amount equal to each Lender's
Percentage of the Aggregate Commitment. Each Lender shall record Advances and
principal payments thereof on the schedule attached to its Note or, at its
option, in its records, and each Lender's record thereof shall be conclusive
absent Borrower furnishing to such Lender conclusive and irrefutable evidence of
an error made by such Lender with respect to that Lender's records.
Notwithstanding the foregoing, the failure to make, or an error in making, a
notation with respect to any Advance or payment shall not limit or otherwise
affect the obligations of Borrower hereunder or under the Notes to pay the
amount actually owed by Borrower to Lenders.
2.5 RATABLE LOANS. Each Advance hereunder shall consist of Loans
made from the several Lenders ratably in proportion to their Percentages, except
for Swingline Loans which shall be made by the Swingline Lender in accordance
with SECTION 2.16. The ratable Advances may be Alternate Base Rate Advances,
LIBOR Advances or a combination thereof selected by the Borrower in accordance
with SECTIONS 2.10 and 2.11.
2.6 APPLICABLE MARGINS AND FACILITY FEE RATE. The Applicable
Margin over the then Alternate Base Rate or LIBOR Rate, as applicable to the
Advance(s) in question, and the Facility Fee Rate, shall vary from time to time
in accordance with Borrower's Leverage Ratio. The Applicable Margin and Facility
Fee Rate shall be adjusted when the Borrower's actual Leverage Ratio as of the
end of any fiscal quarter has been determined, effective as of the last day of
such fiscal quarter, if the change in Borrower's Leverage Ratio gives rise to
such an adjustment. The applicable Leverage Ratios, Applicable Margins and
Facility Fee Rates are set forth in the following table:
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- ------------------------------------- -------------------------- ------------------------- --------------------------
APPLICABLE APPLICABLE
MARGIN-LIBOR MARGIN-BASE
LEVERAGE RATIO ADVANCES RATE ADVANCES FACILITY FEE RATE
- -------------- ---------- --------------- -------------------
- ------------------------------------- -------------------------- ------------------------- --------------------------
Less than or equal to 35% 100 0 20
- ------------------------------------- -------------------------- ------------------------- --------------------------
Greater than 35% but less than or 110 10 20
equal to 45%
- ------------------------------------- -------------------------- ------------------------- --------------------------
Greater than 45% but not to exceed 120 20 25
55%
- ------------------------------------- -------------------------- ------------------------- --------------------------
All margins and fees are in basis points per annum. "Leverage Ratio" as
used in this Section 2.6 does not include any adjustment to liabilities or
assets based on Build to Suit Projects.
2.7 FACILITY FEE. The Borrower agrees to pay to the Agent for the
account of each Lender a facility fee (the "FACILITY FEE") calculated on a daily
basis beginning on the Agreement Execution Date and each day thereafter while
the Aggregate Commitments are in effect equal to the applicable per annum
Facility Fee Rate in effect for such day, as shown in SECTION 2.6 hereof,
converted to a per diem rate, times the then Aggregate Commitment. The Facility
Fee shall be shared among the Lenders based on their respective Percentages and
shall be paid quarterly in arrears on the last Business Day of each calendar
quarter (commencing June 30, 2001) and upon the Maturity Date.
2.8 OTHER FEES. The Borrower shall pay all fees payable to the
Agent and the Arranger pursuant to the Borrower's prior letter agreements with
them.
2.9 MINIMUM AMOUNT OF EACH ADVANCE. Each LIBOR Advance shall be in
the minimum amount of $1,000,000 (and in multiples of $250,000 if in excess
thereof), and each Alternate Base Rate Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $250,000 if in excess thereof), provided,
however, that any Alternate Base Rate Advance may be in the amount of the unused
Aggregate Commitment.
2.10 INTEREST.
(a) The outstanding principal balance under the Notes
shall bear interest from time to time at a rate per annum equal to:
(i) the Adjusted Alternate Base Rate; or
(ii) at the election of Borrower with respect to
all or portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest accrued on each Advance shall
be payable in arrears on the first day of each calendar month, commencing with
the first such date to occur after the date hereof, and the Maturity Date.
Interest shall not be payable for the day of any payment on the amount paid if
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payment is received by Agent prior to noon (Chicago time). If any payment of
principal or interest under the Notes shall become due on a day that is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a payment of principal, such extension of time shall be
included in computing interest due in connection with such payment.
2.11 SELECTION OF RATE OPTIONS AND LIBOR INTEREST PERIODS.
(a) Borrower, from time to time, may select the Rate Option
and, in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to each
LIBOR Advance. Borrower shall give Agent irrevocable notice (a "Borrowing
Notice") not later than 11:00 a.m. (Chicago time) (i) at least one Business Day
prior to a Alternate Base Rate Advance other than a Swingline Loan, (ii) at
least three (3) Business Days prior to a ratable LIBOR Advance, and (iii) not
later than 11:00 a.m. (Chicago time) on the Borrowing Date for each Swingline
Loan, specifying:
(i) the Borrowing Date, which shall be a
Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the
LIBOR Interest Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate referenced in SECTION 5.2(a), if required, and otherwise
comply with the conditions set forth in SECTION 5.2 for Advances. Agent shall
provide each Lender by facsimile with a copy of each Borrowing Notice (and any
compliance certificate) as soon as practicable after receipt, and if timely
received by Agent in accordance with this SECTION 2.11(a), Agent shall provide
same by 4:00 p.m. (Chicago time) on the same Business Day received. Unless
otherwise requested in writing by Borrower prior to such date, with respect to
each Reimbursement Obligation, the Borrower hereby irrevocably requests an
Adjusted Alternate Base Rate Advance on each Business Day on which Reimbursement
Obligations are due, in the amount of such Reimbursement Obligations, and the
Agent shall give the Lenders notice of each such requested Advance in the same
manner as other Adjusted Alternate Base Rate Advances.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Agent. Agent will promptly make the funds so received from the
Lenders available to the Borrower.
(b) Agent shall, as soon as practicable after receipt of
a Borrowing Notice requesting a LIBOR Advance, determine the Adjusted LIBOR Rate
applicable to the requested ratable LIBOR Advance and inform Borrower and
Lenders of the same. Each determination of the Adjusted LIBOR Rate by Agent
shall be conclusive and binding upon Borrower in the absence of manifest error.
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(c) If Borrower shall prepay a LIBOR Advance other than
on the last day of the LIBOR Interest Period applicable thereto, Borrower shall
be responsible to pay all amounts due to Lenders as required by SECTION 4.4
hereof.
(d) As of the end of each LIBOR Interest Period selected
for a LIBOR Advance, the interest rate on the LIBOR Advance will become the
Adjusted Alternate Base Rate, unless Borrower has once again selected a LIBOR
Interest Period in accordance with the timing and procedures set forth in
SECTION 2.11(g).
(e) The right of Borrower to select the Adjusted LIBOR
Rate for an Advance pursuant to this Agreement is subject to suspension as
described in SECTION 4.3. In addition, if (i) reasonable means do not exist for
determining an Adjusted LIBOR Rate, or (ii) the Adjusted LIBOR Rate would be in
excess of the maximum interest rate which Borrower may by law pay, then in
either of such events, Agent shall so notify Borrower and Lenders and such
Advance shall bear interest at the Adjusted Alternate Base Rate.
(f) In no event may Borrower elect a LIBOR Interest
Period which would extend beyond the scheduled Maturity Date. In no event may
Borrower have more than five (5) different LIBOR Interest Periods for LIBOR
Advances outstanding at any one time or have more than five (5) LIBOR Interest
Periods expiring in any thirty (30) day period.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time,
subject to the other provisions of this SECTION 2.11, to
convert all or any part of a ratable Advance into any other
type of Advance; provided that any conversion of a ratable
LIBOR Advance shall be made on, and only on, the last day of
the LIBOR Interest Period applicable thereto.
(ii) Alternate Base Rate Advances shall continue
as Alternate Base Rate Advances unless and until such
Alternate Base Rate Advances are converted into ratable LIBOR
Advances pursuant to a Conversion/Continuation Notice from
Borrower in accordance with SECTION 2.11(g)(iv). Ratable LIBOR
Advances shall continue until the end of the then applicable
LIBOR Interest Period therefor, at which time each such
Advance shall be automatically converted into an Alternate
Base Rate Advance unless the Borrower shall have given the
Agent a Conversion/Continuation Notice in accordance with
SECTION 2.11(g)(iv) requesting that, at the end of such LIBOR
Interest Period, such Advance either continue as an Advance of
such type for an additional LIBOR Interest Period of the same
or different duration.
(iii) Notwithstanding anything to the contrary
contained in this SECTION 2.11(g), no Advance may be converted
into a LIBOR Advance or continued (following the end of a
LIBOR Interest Period) as a LIBOR Advance when any Monetary
Default or Event of Default has occurred and is continuing.
(iv) The Borrower shall give the Agent
irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
22
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into an Alternate Base
Rate Advance, or 11:00 a.m. (Chicago time) at least three (3)
Business Days prior to the date of the requested conversion or
continuation, in the case of a conversion into or continuation
of a ratable LIBOR Advance, specifying: (1) the requested date
(which shall be a Business Day) of such conversion or
continuation; (2) the amount and type of the Advance to be
converted or continued; and (3) the amounts and type(s) of
Advance(s) into which such Advance is to be converted or
continued and, in the case of a conversion into or
continuation of a ratable LIBOR Advance, the duration of the
LIBOR Interest Period applicable thereto.
(v) Agent shall provide each Lender by facsimile
with a copy of each Conversion/Continuation Notice as soon as
practicable after receipt, and if timely received by Agent in
accordance with SECTION 2.11(g)(iv) above, Agent shall provide
same by 4:00 p.m. (Chicago time) on the same Business Day it
is received.
2.12 METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without set-off, deduction, or counterclaim, in immediately
available funds by wire transfer to Agent's account designated in writing from
time to time by notice to Borrower or, in the absence of such notice, to Agent
at its address specified herein, or at any other Lending Installation specified
in writing by Agent to Borrower, by noon (local time) on the date when due and
shall be applied ratably by Agent among the Lenders, except as otherwise
provided herein. Each payment received by Agent for the account of any Lender by
the time of day specified herein shall be delivered on the same Business Day by
Agent to such Lender in the same type of funds that Agent received at its
address specified above in this SECTION 2.12 or at any Lending Installation
specified in a notice received by Agent from such Lender. All payments received
by the Agent from the Borrower for the account of the Lenders after the time of
day specified herein shall be disbursed to the applicable Lenders no later than
the next Business Day, following the day such payment is received in good funds
by the Agent. If payments received by the Agent from the Borrower are not
disbursed to the applicable Lenders on the date required by this Section, any
Lender not receiving such disbursement will receive interest from the Agent at
the Federal Funds Effective Rate for each day of delay in such disbursement.
Agent is hereby authorized to charge the account, if any, of Borrower maintained
with Bank One for each payment of principal, interest and fees as it becomes due
hereunder.
2.13 DEFAULT. Notwithstanding the foregoing, during the continuance
of a Monetary Default, any other material Default, or any Event of Default,
Borrower shall not have the right to request a LIBOR Advance, continue or select
a new LIBOR Interest Period for an existing ratable LIBOR Advance or convert any
Alternate Base Rate Advance to a ratable LIBOR Advance. During the continuance
of a Monetary Default or any Event of Default, outstanding Advances shall bear
interest at the applicable Default Rates until such Monetary Default or Event of
Default ceases to exist or the Obligations are paid in full.
2.14 LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by
23
written notice to the Agent and Borrower, designate a Lending Installation
through which Loans will be made by it and for whose account payments are to be
made.
2.15 NON-RECEIPT OF FUNDS BY AGENT. Unless Borrower or a Lender, as
the case may be, has notified Agent prior to the date on which it is scheduled
to make payment to Agent of (i) in the case of a Lender, an Advance, or (ii) in
the case of Borrower, a payment of principal, interest or fees to the Agent for
the account of the Agent or any or all of the Lenders, that it does not intend
to make such payment (which notice shall not affect the obligations of Borrower
or any Lender, as the case may be, hereunder), and such notice has been received
by Agent, Agent may assume that such payment will be made when due. Agent may,
but shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or Borrower,
as the case may be, has not in fact made such payment to Agent, the recipient of
such payment shall, on demand by Agent, repay to Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by Agent until
the date Agent recovers such amount at a rate per annum equal to (i) in the case
of payment by a Lender, the Federal Funds Effective Rate (as determined by
Agent) for such day or (ii) in the case of payment by Borrower, the interest
rate applicable to the relevant Advance. Nothing in this SECTION 2.15 shall be
deemed to relieve any Lender from its obligations to fulfill its Commitment or
to relieve Borrower of any of its obligations under this Agreement, or to
prejudice any rights which the Borrower may have against any Lender, or any
Lender may have against Borrower, upon a default of such obligations. No Lender
shall be responsible for any default by another Lender and each Lender shall be
obligated to make the Loans provided to be made by it under, and subject to the
terms of this Agreement, regardless of the failure of any other Lender to
fulfill its Commitment hereunder.
2.16 SWINGLINE LOANS. In addition to the other options available to
Borrower hereunder, the amount of the Swingline Commitment, shall be available
for Swingline Loans subject to the following terms and conditions. Swingline
Loans shall be made available for same day borrowings provided that notice is
given in accordance with SECTION 2.11(a) hereof. All Swingline Loans shall bear
interest at the Adjusted Alternate Base Rate and shall be deemed to be Alternate
Base Rate Advances. In no event shall the Swingline Lender be required to fund a
Swingline Loan if it would increase the total aggregate outstanding Loans
(including both Swingline Loans and ratable Loans) by Swingline Lender hereunder
plus its Percentage of Facility Letter of Credit Obligations to an amount in
excess of its Commitment. Upon request of the Swingline Lender made to all the
Lenders (which request shall be made not later than five (5) Business Days after
such Swingline Loan is funded by Swingline Lender), each Lender irrevocably
agrees to purchase its Percentage of any Swingline Loan made by the Swingline
Lender regardless of whether the conditions for disbursement are satisfied at
the time of such purchase, including the existence of an Event of Default
hereunder, provided no Lender shall be required to have total outstanding Loans
plus its Percentage of Facility Letter of Credit Obligations in an amount
greater than its Commitment. Such purchase shall take place on the date of the
request by Swingline Lender so long as such request is made by noon (Chicago
time), otherwise on the next Business Day following such request. All requests
for purchase shall be in writing. From and after the date it is so purchased,
each such Swingline Loan shall, to the extent purchased, (i) be treated as a
Loan made by the purchasing Lenders and not by the selling Lender for all
purposes under this Agreement and the payment of the purchase price by a Lender
shall be deemed to be the making of a Loan by such Lender and shall constitute
outstanding principal
24
under such Lender's Note, and (ii) shall no longer be considered a Swingline
Loan, except that all interest accruing on or attributable to such Swingline
Loan for the period prior to the date of such purchase shall be paid when due by
the Borrower to the Agent for the benefit of the Swingline Lender, but shall be
considered an Alternate Base Rate Advance by each such Lender and all interest
accruing on or attributable to such Loans for the period from and after the date
of such purchase shall be paid when due by the Borrower to the Agent for the
benefit of the purchasing Lenders. If prior to purchasing its Percentage of a
Swingline Loan one of the events described in SECTION 10.10 shall have occurred
and such event prevents the consummation of the purchase contemplated by the
preceding provisions, each Lender will purchase an undivided participating
interest in the outstanding Swingline Loan in an amount equal to its Percentage
of such Swingline Loan. From and after the date of each Lender's purchase of its
participating interest in a Swingline Loan, if the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); provided, however, that in
the event that such payment was received by the Swingline Lender and is required
to be returned to the Borrower, each Lender will return to the Swingline Lender
any portion thereof previously distributed by the Swingline Lender to it. If any
Lender fails to so purchase its Percentage of any Swingline Loan, such Lender
shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan shall be
outstanding for more than five (5) consecutive days at a time, and Swingline
Loans shall not in the aggregate be outstanding for more than ten days in any
calendar month.
2.17 APPLICATION OF MONEYS RECEIVED. All moneys collected or
received by the Agent on account of the Facility directly or indirectly, shall
be applied in the following order of priority:
(i) to the payment of all expenses then due
and payable by Borrower hereunder, including, without
limitation, costs incurred in the collection of such moneys;
(ii) to the reimbursement of any yield
protection due to any of the Lenders in accordance with
SECTION 4.1;
(iii) to the payment of all indemnity obligations
then due and payable by Borrower hereunder;
(iv) first to the payment of any fee due pursuant
to SECTION 3.8(b) in connection with the issuance of a
Facility Letter of Credit to the Issuing Bank until such fee
is paid in full, then next to the payment of the Facility Fee
and Facility Letter of Credit Fee to the Lenders, if then due,
in that order on a pro rata basis in accordance with the
respective amounts of such fees due to the Lenders and then
finally to the payment of all fees then due to the Agent in
its capacity as Agent and not as a Lender;
(v) to payment of the full amount of interest
and principal on the Swingline Loans;
25
(vi) first to interest until paid in full and
then to principal for all Lenders (other than Defaulting
Lenders) (i) in accordance with the Percentages of the Lenders
or (ii) if an Event of Default exists, in accordance with the
respective Funded Percentages of the Lenders;
(vii) any other sums due to the Agent or any
Lender under any of the Loan Documents; and
(viii) to the payment of any sums due to each
Defaulting Lender as their respective Percentages appear
(provided that Agent shall have the right to set-off against
such sums any amounts due from such Defaulting Lender).
2.18 VOLUNTARY REDUCTION OF AGGREGATE COMMITMENT AMOUNT. Upon at
least fifteen (15) days prior irrevocable written notice (or telephone notice
promptly confirmed in writing) to the Agent, Borrower shall have the right,
without premium or penalty, to terminate the Aggregate Commitment in whole or in
part provided that (a) Borrower may not reduce the Aggregate Commitment below
the Allocated Facility Amount at the time of such requested reduction, and (b)
any such partial termination shall be in the minimum aggregate amount of Five
Million Dollars ($5,000,000.00) or any integral multiple of Five Million Dollars
($5,000,000.00) in excess thereof. Any partial termination of the Aggregate
Commitment shall be applied pro rata to each Lender's Commitment.
2.19 FUTURE INCREASE IN AGGREGATE COMMITMENT. The Borrower shall
have the right to increase the Aggregate Commitment up to a maximum of
$200,000,000 by either adding new banks as Lenders (subject to the Agent's prior
written approval of the identity of such new banks) or obtaining the agreement,
which shall be at each such Lender's sole discretion, of one or more of the
then-current Lenders to increase its or their Commitments. Each such increase
may only be exercised prior to the Borrower's delivery of an Extension Request
under Section 2.2 above. No more than two increases may be effected and each
increase must be not less than $25,000,000. Such increase shall be evidenced by
the execution and delivery of an Amendment in the form of EXHIBIT C attached
hereto by the Borrower, the Agent and the new bank or existing Lender providing
such additional Commitment, a copy of which shall be forwarded to each Lender by
the Agent promptly after execution thereof. On the effective date of each such
increase in the Aggregate Commitment, the Borrower and the Agent shall cause the
new or existing Lenders providing such increase, by either funding more than its
or their Percentage of new ratable Advances made on such date or purchasing
shares of outstanding ratable Loans held by other Lenders or a combination
thereof, to hold its or their Percentage of all ratable Advances outstanding at
the close of business on such day. The Lenders agree to cooperate in any
required sale or purchase of outstanding ratable Advances to achieve such
result, provided that if any such required sale results in a prepayment of any
outstanding ratable LIBOR Advances, Borrower shall make all payments required by
SECTION 4.4 to Lenders.
2.20 TERMINATION OF EXISTING FACILITY. Borrower hereby agrees that
the initial Advance hereunder shall include an amount sufficient to repay in
full all of the outstanding amounts owing under that certain existing credit
facility (the "Existing Facility") from Bank of America National Trust and
Savings Association, as agent for the lenders thereunder, to Borrower (as same
may be amended or supplemented from time to time) and that all such outstanding
amounts shall be repaid simultaneously with such initial Advance.
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ARTICLE III
LETTER OF CREDIT SUBFACILITY
3.1 OBLIGATION TO ISSUE. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank hereby agrees to issue for the
account of Borrower, one or more Facility Letters of Credit in accordance with
this ARTICLE III, from time to time during the period commencing on the
Agreement Execution Date and ending on a date one (1) Business Day prior to the
scheduled Maturity Date.
3.2 TYPES AND AMOUNTS. The Issuing Bank shall not have any
obligation to (and without the prior approval of all of the Lenders, shall not):
(i) issue any Facility Letter of Credit if the
aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving
effect to the Facility Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such
Issuing Bank;
(ii) issue any Facility Letter of Credit if,
after giving effect thereto, either (1) the then applicable
Allocated Facility Amount would exceed the then current
Aggregate Commitment, or (2) the Facility Letter of Credit
Obligations would exceed $10,000,000;
(iii) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provisions to extend such date, to a date which is after the
Business Day immediately preceding the scheduled Maturity
Date; or
(iv) issue any Facility Letter of Credit having
an expiration date which is more than twelve (12) months after
the date of its issuance.
3.3 CONDITIONS. In addition to being subject to the satisfaction
of the conditions contained in ARTICLE V hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the
Issuing Bank at such times and in such manner as the Issuing
Bank may reasonably prescribe such documents and materials as
may be reasonably required pursuant to the terms of the
proposed Facility Letter of Credit (it being understood that
if any inconsistency exists between such documents and the
Loan Documents, the terms of the Loan Documents shall control)
and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order,
judgment or decree of any court, arbitrator or governmental
authority shall purport by its terms to enjoin or restrain the
Issuing Bank from issuing the requested Facility Letter of
Credit and no law, rule or regulation applicable to the
Issuing Bank and no request or directive (whether or not
having the force of law) from any governmental authority with
jurisdiction over the Issuing Bank shall prohibit or request
that the
27
Issuing Bank refrain from the issuance of Letters of Credit
generally or the issuance of the requested Facility Letter or
Credit in particular; and
(iii) there shall not exist any Default or Event
of Default.
3.4 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) Borrower shall give the Issuing Bank and the Agent at
least five (5) Business Days' prior written notice of any requested issuance of
a Facility Letter of Credit under this Agreement (a "LETTER OF CREDIT REQUEST"),
a copy of which shall be sent immediately to all Lenders (except that, in lieu
of such written notice, the Borrower may give the Issuing Bank and the Agent
telephonic notice of such request if confirmed in writing by delivery to the
Issuing Bank and the Agent (i) by close of business on such day of a telecopy of
the written notice required hereunder which has been signed by an authorized
officer and contains all information required to be contained in such written
notice and (ii) promptly (but in no event later than the requested date of
issuance) of the written notice required hereunder containing the original
signature of an authorized officer); such notice shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"ISSUANCE DATE");
(3) the date on which such requested Facility Letter of Credit is
to expire;
(4) the purpose for which such Facility Letter of Credit is to be
issued;
(5) the Person who is to be the beneficiary under such Facility
Letter of Credit to be issued; and
(6) subject to SECTION 3.2, any special language required to be
included in the Facility Letter of Credit.
At the time such request is made, the Borrower shall also provide the Agent and
the Issuing Bank with a copy of the form of the Facility Letter of Credit that
the Borrower is requesting be issued. Such notice, to be effective, must be
received by such Issuing Bank and the Agent not later than 2:00 p.m. (Chicago
time) on the last Business Day on which notice can be given under this SECTION
3.4(a).
(b) Subject to the terms and conditions of this
ARTICLE III and provided that the applicable conditions set forth in ARTICLE V
hereof have been satisfied, the Issuing Bank shall, on the Issuance Date, issue
a Facility Letter of Credit on behalf of the Borrower in accordance with the
Letter of Credit Request and the Issuing Bank's usual and customary business
practices unless the Issuing Bank has actually received (i) written notice from
the Borrower specifically revoking the Letter of Credit Request with respect to
such Facility Letter of Credit, or (ii) written or telephonic notice from the
Agent stating that the issuance of such Facility Letter of Credit would violate
SECTION 3.2 or SECTION 3.3.
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(c) The Issuing Bank shall give the Agent (who shall
promptly notify Lenders) and the Borrower written notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance of a Facility Letter
of Credit (the "ISSUANCE NOTICE"), including the information described in
SECTION 3.4(a).
(d) The Issuing Bank shall not extend or amend any
Facility Letter of Credit (other than pursuant to an automatic extension) unless
the requirements of this SECTION 3.4 are met as though a new Facility Letter of
Credit was being requested and issued.
3.5 REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(a) The Issuing Bank shall promptly notify the Borrower
and the Agent (who shall promptly notify Lenders) of any draw under a Facility
Letter of Credit. Any such draw shall constitute an Alternate Base Rate Advance
of the Facility in the amount of the Reimbursement Obligation with respect to
such Facility Letter of Credit and shall bear interest at the Adjusted Alternate
Base Rate from the date of the relevant drawing(s) under the pertinent Facility
Letter of Credit unless otherwise selected by Borrower in accordance with
SECTION 2.11 hereof; provided that if a Monetary Default or an Event of Default
exists at the time of any such drawing(s), then the Borrower shall reimburse the
Issuing Bank for drawings under a Facility Letter of Credit issued by the
Issuing Bank no later than the next succeeding Business Day after Borrower
receives notice of the payment by the Issuing Bank and until repaid such
Reimbursement Obligation shall bear interest at the Default Rate applicable to
Alternate Base Rate Advances.
(b) Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Facility Letter of Credit, if taken
or omitted in the absence of willful misconduct or gross negligence, shall not
put the Issuing Bank under any resulting liability to any Lender or, provided
that such Issuing Bank has complied with the procedures specified in SECTION 3.4
relieve a Lender of its obligations hereunder to the Issuing Bank. In
determining whether to pay under any Facility Letter of Credit, the Issuing Bank
shall have no obligation relative to the Lenders other than to confirm that any
documents required to be delivered under such Letter of Credit appear to have
been delivered in compliance, and that they appear to comply on their face, with
the requirements of such Letter of Credit.
3.6 PARTICIPATION.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in SECTION
3.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Bank, without recourse, representation
or warranty, except as otherwise provided herein, an undivided interest and
participation equal to such Lender's Percentage in such Facility Letter of
Credit (including, without limitation, all obligations of the Borrower with
respect thereto) and all related rights hereunder and under the Guaranty and
other Loan Documents. Each Lender's obligation to make further Loans to Borrower
(other than any payments such Lender is required to make under subparagraph (b)
below) or to purchase an interest from the Issuing Bank in any subsequent
letters of credit issued by the Issuing Bank on behalf of Borrower shall be
reduced by such Lender's Percentage of the undrawn portion of each Facility
Letter of Credit outstanding.
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(b) In the event that the Issuing Bank makes any payment
under any Facility Letter of Credit and the Borrower shall not have repaid such
amount to the Issuing Bank pursuant to SECTION 3.7 hereof, the Issuing Bank
shall promptly notify the Agent, which shall promptly notify each Lender of the
same, and each Lender shall promptly and unconditionally pay to the Agent for
the account of the Issuing Bank the amount of such Lender's Percentage of the
unreimbursed amount of such payment, and the Agent shall promptly pay such
amount to the Issuing Bank. Notwithstanding the foregoing, unless Borrower shall
notify Agent of Borrower's intent to repay the Reimbursement Obligation on the
date of the related drawing under any Facility Letter of Credit, such
Reimbursement Obligation shall simultaneously with such drawing be converted to
and become an Alternate Base Rate Advance under SECTION 2.11. Each Lender's
payments of its Percentage of such Reimbursement Obligation as aforesaid shall
be deemed to be a Loan by such Lender as a part of the Alternate Base Rate
Advance into which such Reimbursement Obligation is converted and shall
constitute outstanding principal under such Lender's Note. The failure of any
Lender to make available to the Agent for the account of the Issuing Bank its
Percentage of the unreimbursed amount of any such payment shall not relieve any
other Lender of its obligation hereunder to make available to the Agent for the
account of such Issuing Bank its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the Agent
its Percentage of the unreimbursed amount of any payment on the date such
payment is to be made. Any Lender which fails to make any payment required
pursuant to this SECTION 3.6(b) shall be deemed to be a Defaulting Lender
hereunder.
(c) Whenever the Issuing Bank receives a payment on
account of a Reimbursement Obligation, including any interest thereon, the
Issuing Bank shall promptly pay to the Agent and the Agent shall promptly pay to
each Lender which has funded its participating interest therein, in immediately
available funds, an amount equal to such Lender's Percentage thereof. The timing
of the Agent's payments to the Lenders, and provision for interest on payments
not made timely, shall be the same as apply under Section 2.12 with respect to
other payments made by the Borrower.
(d) Upon the request of the Agent or any Lender, the
Issuing Bank shall furnish to such Agent or Lender copies of any Facility Letter
of Credit to which the Issuing Bank is party and such other documentation as may
reasonably be requested by the Agent or Lender.
(e) The obligations of a Lender to make payments to the
Agent for the account of the Issuing Bank with respect to a Facility Letter of
Credit shall be absolute, unconditional and irrevocable, not subject to any
counterclaim, set-off, qualification or exception whatsoever other than a
failure of any such Issuing Bank to comply with the terms of this Agreement
relating to the issuance of such Facility Letter of Credit, and such payments
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances.
3.7 PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(a) The Borrower agrees to pay to the Agent for the
account of the Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to the Issuing Bank under or in
connection with any Facility Letter of Credit when due, irrespective of any
claim, set-off, defense or other right which the Borrower may have at any
30
time against any Issuing Bank or any other Person, under all circumstances,
including without limitation any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense
or other right which the Borrower may have at any time against
a beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, the
Issuing Bank, any Lender, or any other Person, whether in
connection with this Agreement, any Facility Letter of Credit,
the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between
the Borrower and the beneficiary named in any Facility Letter
of Credit);
(iii) any draft, certificate or any other document
presented under the Facility Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect of
any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of any
of the Loan Documents; or
(v) the occurrence of any Default or Event of
Default.
(b) In the event any payment by the Borrower received by
the Issuing Bank or the Agent with respect to a Facility Letter of Credit and
distributed by the Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from the Agent or Issuing Bank in
connection with any receivership, liquidation, reorganization or bankruptcy
proceeding, each Lender which received such distribution shall, upon demand by
the Agent, contribute such Lender's Percentage of the amount set aside, avoided
or recovered together with interest at the rate required to be paid by the
Issuing Bank or the Agent upon the amount required to be repaid by the Issuing
Bank or the Agent.
3.8 COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Agent, for the ratable
account of the Lenders, based upon the Lenders' respective Percentages, a per
annum fee (the "FACILITY LETTER OF CREDIT FEE") with respect to each Facility
Letter of Credit that is equal to the Applicable Margin applicable to LIBOR
Advances in effect from time to time. The Facility Letter of Credit Fee relating
to any Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of
any Facility Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Maturity Date. The Agent shall promptly remit such Facility
Letter of Credit Fees, when paid, to the other Lenders in accordance with their
Percentages thereof. The Borrower shall not have any liability to any Lender for
the failure of the Agent to promptly deliver funds to any such Lender and shall
be deemed to have made all such payments on the date the respective payment is
made by the Borrower to the Agent, provided such payment is received by the time
specified in SECTION 2.12 hereof.
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(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.15% of the face amount of each
Facility Letter of Credit, payable by the Borrower on the Issuance Date for each
such Facility Letter of Credit. The Issuing Bank shall also be entitled to
receive its reasonable out-of-pocket costs and the Issuing Bank's standard
charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.
3.9 LETTER OF CREDIT COLLATERAL ACCOUNT. The Borrower hereby
agrees that it will, until all of the Obligations are paid and performed in
full, maintain a special collateral account (the "LETTER OF CREDIT COLLATERAL
ACCOUNT") at the Agent's office at the address specified pursuant to ARTICLE XV,
in the name of the Borrower but under the sole dominion and control of the
Agent, for the benefit of the Lenders, and in which the Borrower shall have no
interest other than as set forth in SECTION 11.1. In addition to the foregoing,
the Borrower hereby grants to the Agent, for the benefit of the Lenders, a
security interest in and to the Letter of Credit Collateral Account and any
funds that may hereafter be on deposit in such account, including income earned
thereon. The Lenders acknowledge and agree that the Borrower has no obligation
to fund the Letter of Credit Collateral Account unless and until so required
under SECTION 11.1 hereof and, if the Borrower does deposit any funds therein
prior to being so required, the Borrower may withdraw such funds so long as no
Monetary Default or Event of Default then exists.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1 YIELD PROTECTION. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation or the Issuing Bank with any request
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) subjects any Lender or any applicable
Lending Installation or the Issuing Bank to any Taxes, or
changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender or the Issuing Bank
in respect of its LIBOR Loans, Facility Letters of Credit or
participations therein, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any
applicable Lending Installation or the Issuing Bank (other
than reserves and assessments taken into account in
determining the interest rate applicable to LIBOR Advances),
or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender or any
applicable Lending Installation or the Issuing Bank of making,
funding or maintaining its LIBOR Loans, or of issuing or
participating in
32
Facility Letters of Credit, or reduces any
amount receivable by any Lender or any applicable Lending
Installation or the Issuing Bank in connection with its
LIBOR Loans, Facility Letters of Credit or participations
therein, or requires any Lender or any applicable Lending
Installation or the Issuing Bank to make any payment
calculated by reference to the amount of LIBOR Loans,
Facility Letters of Credit or participations therein held or
interest or fees received by it, by an amount deemed material
by such Lender or the Issuing Bank as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the Issuing Bank, as the case may be, of
making or maintaining its LIBOR Loans or Commitment or of issuing or
participating in Facility Letters of Credit or to reduce the return received by
such Lender or applicable Lending Installation or the Issuing Bank, as the case
may be, in connection with such LIBOR Loans, Commitment, Facility Letters of
Credit or participations therein, then, within 15 days after written demand by
such Lender or the Issuing Bank, as the case may be, describing the basis for
such demand the Borrower shall pay such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such increased cost or reduction in amount
received.
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporate entity
controlling such Lender is increased as a result of a Change (as defined below),
then, within fifteen (15) days after written demand by such Lender, Borrower
shall pay such Lender the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans, its interest in the
Facility Letters of Credit or its obligation to make Loans hereunder or
participate in or issue Facility Letters of Credit hereunder (after taking into
account such Lender's policies as to capital adequacy). "CHANGE" means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines (as
defined below) or (ii) any adoption of or change in any other law, governmental
or quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards", including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement. Without in any way
affecting the Borrower's obligation to pay compensation actually claimed by a
Lender under this SECTION 4.2, the Borrower shall have the right to replace any
Lender which has demanded such compensation with a replacement Lender acceptable
to Agent; provided, however, that no Monetary Default, other material Default or
any Event of Default shall then exist, and that Borrower notifies such Lender
that it has elected to replace such Lender and notifies such Lender and the
Agent of the identity of the proposed replacement Lender not more than sixty
(60) days after the date of such Lender's most recent demand for compensation
under this SECTION 4.2. The Lender being replaced shall assign its Percentage of
the Aggregate Commitment and its rights and obligations under this Facility to
the replacement
33
Lender in accordance with the requirements of SECTION 13.3 hereof and the
replacement Lender shall assume such Percentage of the Aggregate Commitment and
the related obligations under this Facility, all pursuant to an assignment
agreement substantially in the form of EXHIBIT D hereto. The purchase by the
replacement Lender shall be at par (plus all accrued and unpaid interest and any
other sums owed to such Lender being replaced hereunder) which shall be paid to
the Lender being replaced upon the execution and delivery of the assignment.
4.3 AVAILABILITY OF LIBOR ADVANCES. If any Lender determines that
maintenance of any of its Loans bearing interest at the Adjusted LIBOR Rate at a
suitable Lending Installation would violate any applicable law, rule, regulation
or directive of any Governmental Authority having jurisdiction, the Agent shall
suspend by written notice to Borrower the availability of outstanding LIBOR
Advances and require any LIBOR Advances to be repaid. If the Required Lenders
determine that deposits of a type or maturity appropriate to match fund LIBOR
Advances are not available, the Agent shall suspend by written notice to
Borrower the availability of LIBOR Advances from and after the date of any such
determination. If the Required Lenders determine that an interest rate
applicable to a LIBOR Advance does not accurately reflect the cost of making a
LIBOR Advance, and, if for any reason whatsoever the provisions of SECTION 4.1
are inapplicable, the Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances from and after the date of any such
determination.
4.4 FUNDING INDEMNIFICATION. If any payment of a LIBOR Advance
occurs on a date which is not the last day of the LIBOR Interest Period, whether
because of acceleration, prepayment or otherwise, or a LIBOR Advance is not made
on the date specified by Borrower for any reason other than default by one or
more of the Lenders, Borrower will indemnify and hold harmless each Lender from
and against any loss, damage, expense or cost incurred by such Lender resulting
therefrom, including, without limitation, any loss, damage, expense or cost in
liquidating or employing deposits acquired to fund or maintain the LIBOR
Advance.
4.5 TAXES.
(i) All payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any Note
shall be made free and clear of and without deduction for any
and all Taxes. If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) the sum payable
shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this SECTION 4.5) such Lender or
the Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower
shall pay the full amount deducted to the relevant authority
in accordance with applicable law and (d) the Borrower shall
furnish to the Agent the original copy of a receipt evidencing
payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to
pay any present or future stamp or documentary taxes and any
other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or under any
34
Note or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note ("OTHER TAXES").
(iii) The Borrower hereby agrees to indemnify the
Agent and each Lender for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this SECTION 4.5) paid by the
Agent or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made
within 30 days of the date the Agent or such Lender makes
demand therefor pursuant to SECTION 4.6.
(iv) Each Lender that is not incorporated under
the laws of the United States of America or a state thereof
(each a "NON-U.S. LENDER") agrees that it will, not more than
ten Business Days after the date of this Agreement, (i)
deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service
Form W-8BEN or W-8ECI, certifying in either case that such
Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Borrower and the
Agent a United States Internal Revenue Form W-8 or W-9, as the
case may be, and certify that it is entitled to an exemption
from United States backup withholding tax. Each Non-U.S.
Lender further undertakes to deliver to each of the Borrower
and the Agent (x) renewals or additional copies of such form
(or any successor form) on or before the date that such form
expires or becomes obsolete, and (y) after the occurrence of
any event requiring a change in the most recent forms so
delivered by it, such additional forms or amendments thereto
as may be reasonably requested by the Borrower or the Agent.
All forms or amendments described in the preceding sentence
shall certify that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any
United States federal income taxes, UNLESS an event (including
without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the
Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S.
Lender has failed to provide the Borrower with an appropriate
form pursuant to clause (iv), above (unless such failure is
due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on
which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under
this SECTION 4.5 with respect to Taxes imposed by the United
States.
(vi) Any Lender that is entitled to an exemption
from or reduction of withholding tax with respect to
payments under this Agreement or any Note pursuant to the
law of any relevant jurisdiction or any treaty shall deliver
to the
35
Borrower (with a copy to the Agent), at the time or
times prescribed by applicable law, such properly completed
and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or
at a reduced rate following receipt of such documentation.
(vii) If the U.S. Internal Revenue Service or any
other governmental authority of the United States or any other
country or any political subdivision thereof asserts a claim
that the Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate
form was not delivered or properly completed, because such
Lender failed to notify the Agent of a change in circumstances
which rendered its exemption from withholding ineffective, or
for any other reason), such Lender shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the
Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Agent under this
subsection, together with all costs and expenses related
thereto (including attorneys fees and time charges of
attorneys for the Agent, which attorneys may be employees of
the Agent). The obligations of the Lenders under this SECTION
4.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
4.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Advances to reduce any liability of
Borrower to such Lender under SECTIONS 4.1, 4.2 and 4.5 or to avoid the
unavailability of a LIBOR Advance, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement of
such Lender as to the amount due, if any, under SECTIONS 4.1, 4.2, 4.4 or 4.5
hereof. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
Advance shall be calculated as though each Lender funded its LIBOR Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Adjusted LIBOR Rate applicable to
such Advance, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on demand
after receipt by Borrower of the written statement. The obligations of Borrower
under SECTIONS 4.1, 4.2, 4.4 and 4.5 hereof shall survive payment of the
Obligations and termination of this Agreement.
4.7 REMOVAL OR REPLACEMENT OF A LENDER.
(a) Anything contained in this Agreement to the contrary
notwithstanding, in the event that:
(i) (1) any Lender (an "Increased-Cost Lender")
shall give notice to Borrower that such Lender is entitled to
receive payments under Section 4.5, (2) the circumstances
which entitle such Lender to receive such payments shall
remain in effect, and (3) such Lender shall fail to withdraw
such notice within ten Business Days after Borrower's request
for such withdrawal; or
36
(ii) any Lender shall be a Defaulting Lender;
then, and in each such case, Borrower shall have the right,
at its option, to remove or replace the applicable Increased-
Cost Lender or Defaulting Lender (the "Terminated Lender") to
the extent permitted by this Section 4.7.
(b) Borrower may, by giving written notice to the Agent
and any Terminated Lender:
(i) elect to (a) terminate the Commitment, if
any, of such Terminated Lender upon receipt by such Terminated
Lender of such notice and (b) prepay on the date of such
termination any outstanding Loans made by such Terminated
Lender, at par, together with accrued and unpaid interest
thereon and any other amounts payable to such Terminated
Lender hereunder pursuant to Section 4.5 or otherwise;
PROVIDED that, in the event such Terminated Lender has any
Loans outstanding at the time of such termination, the written
consent of Agent and Required Lenders (which consent shall not
be unreasonably withheld or delayed) shall be required in
order for Borrower to make the election set forth in this
clause (i); or
(ii) elect to cause such Terminated Lender (and
such Terminated Lender hereby irrevocably agrees) to assign
its outstanding Loans, at par, and its Commitment, if any, in
full to one or more Eligible Assignees (each a "Replacement
Lender") in accordance with the provisions of Section 13.3 (it
being understood that neither Agent nor such Terminated Lender
shall have any obligation to solicit or otherwise identify any
potential Replacement Lender); PROVIDED that, on the date of
such assignment, Borrower shall pay any amounts payable to
such Terminated Lender pursuant to Section 4.5 or otherwise as
if it were a prepayment; and PROVIDED, FURTHER that, if such
Terminated Lender fails to enter into an Assignment Agreement
with any applicable Replacement Lender in accordance with the
provisions of Section 13.3 as contemplated by the foregoing
provisions of this Section 4.8, it shall be deemed to have so
entered into such Assignment Agreement;
PROVIDED that Borrower may not make either of the elections set forth
in clauses (i) or (ii) above with respect to any Terminated Lender that has
issued any Facility Letter of Credit unless, prior to the effectiveness of such
election, Borrower shall have caused each outstanding Facility Letter of Credit
issued by such Terminated Lender to be cancelled or replaced.
(c) Upon the prepayment of all amounts owing to any
Terminated Lender and the termination of such Terminated Lender's Commitment, if
any, pursuant to clause (i) of Section 4.7(b), (i) this Agreement shall be
deemed modified to reflect any corresponding changes in the Commitments and (ii)
such Terminated Lender shall no longer constitute a "Lender" for purposes of
this Agreement; PROVIDED that any rights of such Terminated Lender to
indemnification under this Agreement shall survive as to such Terminated Lender.
37
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS PRECEDENT TO CLOSING. The Lenders shall not be
required to make the initial Advance hereunder unless (i) the Borrower shall
have paid all fees then due and payable to the Lenders, the Arranger and the
Agent hereunder and pursuant to Agent's and Arranger's letter agreements with
the Borrower, (ii) all of the conditions set forth in SECTION 5.2 are satisfied,
and (iii) the Borrower shall have furnished to the Agent, in form and substance
satisfactory to the Lenders and their counsel and with sufficient copies for the
Lenders, the following:
(a) CERTIFICATES OF LIMITED PARTNERSHIP/INCORPORATION.
A copy of the Certificate of Limited Partnership for the Borrower and a copy of
the articles of incorporation or other applicable organizational documents of
each of General Partner and the other Guarantors, each certified by the
appropriate Secretary of State or equivalent state official.
(b) AGREEMENTS OF LIMITED PARTNERSHIP/BYLAWS. A copy of
the Agreement of Limited Partnership for the Borrower and a copy of the bylaws,
partnership agreement, operating agreement or other applicable governing
instrument of each of the General Partner and the other Guarantors, including
all amendments thereto, each certified by the Secretary or other appropriate
officer of the Person in question as being in full force and effect on the
Agreement Execution Date.
(c) GOOD STANDING CERTIFICATES. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where each of the Borrower, General Partner and each other Guarantor are
organized, dated as of the most recent practicable date, showing the good
standing or partnership qualification (if issued) of each of Borrower, General
Partner and each other Guarantor.
(d) FOREIGN QUALIFICATION CERTIFICAtes. A certified copy
of a certificate from the Secretary of State or equivalent state official of the
state where each of the Borrower, General Partner and the other Guarantors
maintain its principal place of business, dated as of the most recent
practicable date, showing the qualification to transact business in such state
as a foreign entity, for each of Borrower, General Partner and the other
Guarantors, except where the failure to be so qualified or to obtain such
authority would not have a Material Adverse Effect.
(e) RESOLUTIONS. A copy of a resolution or resolutions
adopted by the Board of Directors or other applicable governing body of each of
the General Partner and the other Guarantors, certified by the Secretary or
other appropriate officer of the Person in question as being in full force and
effect on the Agreement Execution Date, authorizing the execution, delivery and
performance of the Loan Documents to which the Borrower or such Person, as
applicable, is a party and the consummation of the transactions provided for
therein.
(f) INCUMBENCY CERTIFICATE. A certificate for each of the
General Partner and the other Guarantors, signed by the Secretary or other
appropriate officer of the Person in question and dated the Agreement Execution
Date, as to the incumbency, and containing the specimen signature or signatures,
of the Persons authorized to execute and deliver the Loan Documents to be
executed and delivered by such entity.
38
(g) LOAN DOCUMENTS. Originals of the Loan Documents
(in such quantities as the Lenders may reasonably request), duly executed by
authorized officers of the appropriate entity.
(h) OPINION OF BORROWER'S COUNSEL. A written opinion,
dated the Agreement Execution Date, from outside counsel for the Borrower and
Guarantors which counsel is reasonably satisfactory to Agent, substantially in
the form attached hereto as EXHIBIT E.
(i) COMPLIANCE CERTIFICATE. An original compliance
certificate in the form attached hereto as EXHIBIT F, duly executed by a
Qualified Officer of Borrower.
(j) FINANCIAL AND RELATED INFORMATION. The following
information:
(i) A certificate, signed by an executive
officer of the General Partner on behalf of the Borrower,
stating that on the Agreement Execution Date no Default or
Event of Default has occurred and is continuing and that all
representations and warranties of the Borrower contained
herein are true and correct as of the Agreement Execution Date
as and to the extent set forth herein;
(ii) The most recent consolidated annual and
quarterly financial statements of the Borrower and a
certificate from a Qualified Officer of the Borrower that no
change in the Borrower's financial condition that could have a
Material Adverse Effect has occurred since the date of the
most recent financial statements delivered to the Agent;
(iii) Evidence of sufficient Unencumbered Assets,
which evidence may include pay-off letters (together with
evidence of payment or a direction of Borrower to use a
portion of the proceeds of the Advances to repay such
Indebtedness), mortgage releases and/or title policies, to
assist the Agent in determining the Borrower's compliance with
the covenants set forth in ARTICLE VII and ARTICLE IX herein;
(iv) Written money transfer addressed to the
Agent and signed by a Qualified Officer of Borrower, together
with such other related money transfer authorizations as the
Agent may have reasonably requested; and
(v) Operating statements for the Unencumbered
Assets and other evidence of income and expenses to assist the
Agent in determining Borrower's compliance with the covenants
set forth in ARTICLES VII, VIII and IX herein.
(k) OTHER EVIDENCE AS ANY LENDER MAY REQUIRE. Such other
documents and evidence as the Agent and any Lender may reasonably request to
fully effectuate and establish the consummation of the transactions contemplated
hereby, the taking of all necessary actions in any proceedings in connection
herewith and compliance with the conditions set forth in this Agreement.
5.2 CONDITIONS PRECEDENT TO SUBSEQUENT ADVANCES. Advances after the
initial Advance shall be made from time to time as requested by Borrower, and
the obligation of each
39
Lender to make any Loan for any such Advance (including Swingline Loans) are
subject to the following terms and conditions:
(a) prior to and at the time of each such Advance, no
Default or Event of Default shall have occurred and be continuing under this
Agreement or any of the Loan Documents and, if required by Agent, Borrower shall
deliver a compliance certificate of Borrower to such effect; and
(b) The representations and warranties contained in
ARTICLE VI are true and correct as and to the extent set forth therein as of
such Borrowing Date or date of conversion and/or continuation, except to the
extent any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall be true and
correct on and as of such earlier date.
(c) As to each Person that executes and delivers a
Guaranty after the Agreement Execution Date (or that is required to do so), the
Borrower has delivered to the Agent the items described in subsections (a)
through (g) of SECTION 5.1 hereof.
(d) As of the date of such Advance, the making of the
Advance will not cause Consolidated Unsecured Debt (after giving effect to such
Advance) to exceed 50% of the Value of Unencumbered Assets (as measured in
Borrower's most recent compliance certificate delivered to Agent).
Each Borrowing Notice, Conversion/Continuation Notice and Letter of
Credit Request shall constitute a representation and warranty by the Borrower
that the conditions contained in SECTIONS 5.2(a) through (d) have been
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1 EXISTENCE. Attached hereto as SCHEDULE 6.1 (as updated from
time to time in accordance with this Agreement) is a table showing, for each
Credit Party, its organizational form (e.g., corporation, partnership, limited
liability company, etc.), state of organization, state in which its principal
place of business is located, and owner(s) of its Capital Stock and their
percentage ownership interests. Each Credit Party is an entity of the type
indicated for such Credit Party on SCHEDULE 6.1 (as updated from time to time)
duly organized and validly existing under the laws of the state of its
organization as indicated on SCHEDULE 6.1 (as updated from time to time), with
its principal place of business in the state indicated for such Credit Party on
SCHEDULE 6.1 (as updated from time to time), and is duly qualified as a foreign
entity, properly licensed (if required), in good standing and has all requisite
authority to conduct its business in each jurisdiction in which it owns any
Property and, except where the failure to be so qualified or to obtain such
authority would not have a Material Adverse Effect, in each other jurisdiction
in which the nature of its business or activities requires such qualification or
authority. Each Subsidiary of each Credit Party, if any, is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite authority to conduct its business in each
jurisdiction in which it owns any Property, and except where the failure to be
so
40
qualified or to obtain such authority would not have a Material Adverse Effect,
in each other jurisdiction in which the nature of its business or activities
requires such qualification.
6.2 CORPORATE/PARTNERSHIP POWERS. The execution, delivery and
performance of the Loan Documents required to be delivered by each Credit Party
hereunder are within the power and authority of such entity and have been duly
authorized by all requisite action, and are not in conflict with the terms of
any organizational instruments of such entity, or any instrument or agreement to
which such Credit Party is a party or by which such Credit Party or any of its
respective assets may be bound or affected.
6.3 POWER OF OFFICERS. The officers of each Credit Party executing
the Loan Documents required to be delivered by such entities or by the Borrower
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
6.4 GOVERNMENT AND OTHER APPROVALS. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or performance
of any of the Loan Documents by any of the Credit Parties. No other consent to
or approval of the transactions contemplated hereunder is required from any
ground lessor, mortgagee, beneficiary under a deed of trust or any other Person,
except as has been delivered to the Lenders on or before the Agreement Execution
Date.
6.5 SOLVENCY. Immediately after the Agreement Execution Date and
immediately following the making of each Advance and after giving effect to the
application of the proceeds of such Advance, each of the Credit Parties will be
Solvent.
6.6 COMPLIANCE WITH LAWS AND AGREEMENTS. There is no judgment,
decree or order or any law, rule or regulation of any court or governmental
authority binding on any of the Credit Parties or any of their respective assets
which would be violated or contravened by the execution, delivery or performance
of the Loan Documents. The Credit Parties and their respective Property and
other assets are in substantial compliance with applicable laws, and with all
material leases, licenses and other agreements to which any Credit Party is a
party or by which such Credit Party or any of its assets is bound. No other
party to any such lease, license or other agreement is in default thereunder in
any material respect.
6.7 ENFORCEABILITY OF AGREEMENT. This Agreement and each of the
other Loan Documents is (or, when fully executed and delivered, will be) the
legal, valid and binding agreement of each of the Credit Parties thereto,
enforceable against each such Credit Party in accordance with its respective
terms, except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
rights of creditors generally.
6.8 TITLE TO PROPERTY. Borrower or its Subsidiaries has fee simple
title (subject only to Permitted Liens) to the Property and assets reflected in
Borrower's consolidated financial statements most recently delivered to the
Agent as owned by it or any such Subsidiary, free and clear of Liens except for
the Permitted Liens. Neither the execution, delivery nor performance of the Loan
Documents required by the Credit Parties will result in the creation of any Lien
on the Property or such assets. Borrower and its Subsidiaries either own, or
have entered into valid
41
leases, licenses and other agreements for, all assets, services and facilities
necessary for the conduct of their respective businesses and the operation of
their respective assets.
6.9 LITIGATION. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of Borrower's knowledge after due inquiry, threatened against or affecting the
Borrower, any of the other Credit Parties or any of the Property, the adverse
determination of which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, except as disclosed on SCHEDULE 6.9
hereto.
6.10 EVENTS OF DEFAULT. No Default or Event of Default has occurred
and is continuing or would result from the incurring of obligations by any of
the Credit Parties under any of the Loan Documents or any other document to
which any of the Credit Parties is a party.
6.11 INVESTMENT COMPANY ACT OF 1940. None of the Credit Parties is
an investment company within the meaning of the Investment Company Act of 1940
and none of the Credit Parties will become such an investment company.
6.12 PUBLIC UTILITY HOLDING COMPANY ACT. None of the Credit Parties
is 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 definitions of the Public Utility Holding Company Act of
1935, as amended.
6.13 REGULATION U. The proceeds of the Advances will not be used,
directly or indirectly, to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
6.14 NO MATERIAL ADVERSE CHANGE. There has been no change in the
business, Properties or condition (financial or otherwise) of the Borrower or
Guarantors from the date of the financial and/or operating statements most
recently submitted to the Lenders which could reasonably be expected to have a
Material Adverse Effect.
6.15 FINANCIAL INFORMATION. All financial statements and operating
statements furnished to the Lenders by or at the direction of any of the Credit
Parties and all other financial information and data furnished by any of the
Credit Parties to the Lenders are complete and correct in all material respects
as of the date thereof, and such statements have been prepared in accordance
with GAAP and fairly present the consolidated financial condition and results of
operations of the Credit Parties and the Property as of such date. None of the
Credit Parties has any contingent obligations, liabilities for taxes or other
outstanding financial obligations which are material in the aggregate, except as
disclosed in such statements, information and data.
6.16 FACTUAL INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of any of the Credit Parties to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions contemplated therein is, and all other such
factual information hereafter furnished by or on behalf of any of the Credit
Parties to the Lenders will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information not
misleading at such time.
42
6.17 ERISA. (i) None of the Credit Parties is an entity deemed to
hold "plan assets" within the meaning of ERISA or any regulations promulgated
thereunder of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan within the meaning of Section
4975 of the Code, and (ii) the execution of this Agreement and the other Loan
Documents and the transactions contemplated hereunder and thereunder do not give
rise to a prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
6.18 TAXES. All required tax returns have been filed by each of the
Credit Parties with the appropriate authorities except to the extent that
extensions of time to file have been requested, granted and have not expired or
except to the extent such taxes are being contested in good faith by appropriate
proceedings and for which adequate reserves, in accordance with GAAP, are being
maintained.
6.19 ENVIRONMENTAL MATTERS. Except as disclosed in SCHEDULE 6.19:
(i) To the knowledge of Borrower, no Property
contains any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, and no
Materials of Environmental Concern are managed in violation
of, any Environmental Laws or could reasonably be expected to
give rise to liability thereunder.
(ii) None of Borrower, its Subsidiaries or
Investment Affiliates has received any written notice alleging
that any or all of the Property or any or all of the
operations at the Property are not in compliance with all
applicable Environmental Laws, or alleging the existence of
any contamination at or under such Property in amounts or
concentrations which constitute a violation of, or could
reasonably be expected to give rise to liability under, any
Environmental Law.
(iii) To the best of Borrower's knowledge after
due inquiry, no notice, violation, non-compliance or liability
referred to in SECTION 6.19(ii) above is threatened, and no
condition, fact or circumstance exists that could reasonably
be expected to result in such notice, violation,
non-compliance or liability.
(iv) To the knowledge of Borrower, during the
ownership of the Property by any or all of Borrower, its
Subsidiaries and Investment Affiliates, no Materials of
Environmental Concern have been released, transported or
disposed of, or otherwise migrated, from the Property in
violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any
applicable Environmental Laws, nor during the ownership of the
Property by any or all of Borrower, its Subsidiaries and
Investment Affiliates have any Materials of Environmental
Concern been generated, treated, stored, abandoned or disposed
of at, on or under any of such Property in violation of, or in
a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Laws. To the
best knowledge of Borrower after due inquiry, no such release,
transport, disposal, migration, generation, treatment,
abandonment or storage from, at, on or under any of the
Property occurred, prior to ownership thereof by Borrower, its
Subsidiaries and Investment Affiliates, in violation of, or
43
in a manner or to a location which could reasonably be
expected to give rise to liability under, any applicable
Environmental Laws.
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the best knowledge of
Borrower after due inquiry, threatened, under any
Environmental Law to which Borrower, any of its Subsidiaries
or any Investment Affiliate is named as a party with respect
to any of the Property, nor are there any consent or other
decrees, orders, or other administrative or judicial decisions
or requirements outstanding under any Environmental Law with
respect to such Property.
6.20 INSURANCE. Borrower has obtained, and fully paid all
premiums due on, the following policies or binders of insurance on the
Properties:
(i) Property insurance (including coverage for
flood and other water damage for any Properties located within
a 100-year flood plain) in the amount of 100 percent of the
replacement cost of the improvements at the Properties;
(ii) Loss of rental income insurance in the
amount not less than one year's Gross Revenues from the
Properties; and
(iii) Commercial general liability insurance in
the amount of at least $5,000,000 per occurrence.
All insurance must be carried by companies with a Best
Insurance Reports Policyholder's and Financial Size Rating of "A-IX" or better.
6.21 NO BROKERS. None of the Credit Parties has dealt with any
brokers, finders or other intermediaries in connection with this Facility, and
no fees, commissions or other compensation are payable by or to any such Person
in connection with this Agreement or the Advances. Lenders shall not be
responsible for the payment of any fees or commissions to any brokers, finders
or other intermediaries and Borrower shall indemnify, defend and hold Lenders
harmless from and against any claims, liabilities, obligations, damages, costs
and expenses (including attorneys' fees and disbursements) made against or
incurred by Lenders as a result of claims made or actions instituted by any
brokers, finders or other intermediaries claiming by, through or under any of
the Credit Parties in connection with the Facility.
6.22 NO VIOLATION OF USURY LAWS. No aspect of any of the
transactions contemplated herein or in any of the other Loan Documents violates
or will violate any applicable usury laws or laws regarding the validity of
agreements to pay interest.
6.23 NOT A FOREIGN PERSON. None of the Credit Parties is a
"foreign person" within the meaning of Section 1445 or Section 7701 of the Code.
6.24 NO TRADE NAME. Except as otherwise set forth on SCHEDULE 6.24
attached hereto, none of the Credit Parties uses any trade name and has not and
does not do business under any name other than their actual names set forth
herein.
44
6.25 SUBSIDIARIES. SCHEDULE 6.25 (as updated from time to time in
accordance with this Agreement) hereto contains an accurate list of all of the
Subsidiaries of each of the Credit Parties, and of all of the Investment
Affiliates of each of the Credit Parties, setting forth their respective
jurisdictions of formation, the percentage of their respective Capital Stock
owned by each Credit Party and the Property owned by them. All of the issued and
outstanding shares of Capital Stock of all of the direct and indirect
Subsidiaries and Investment Affiliates of Borrower have been duly authorized and
issued and are fully paid and non-assessable. All of such Capital Stock owned
directly or indirectly by Borrower is free and clear of Liens, except as
otherwise specifically noted on SCHEDULE 6.25 (as updated from time to time).
6.26 PROPERTIES. SCHEDULE 6.26 hereto (as updated from time to time in
accordance with the terms of this Agreement) contains a complete and accurate
description, as of the Agreement Execution Date and the date of each update of
SCHEDULE 6.26 submitted by Borrower from time to time in accordance with the
terms of this Agreement, of each Property, including the name of the entity that
owns each such Property, and whether such Property is Eligible Land, Land, a
Project, and/or an Unencumbered Asset. As of the Agreement Execution Date, the
Borrower represents that those Properties described on SCHEDULE 6.26 attached
hereto constitute all of the Unencumbered Assets as of such date. With respect
to each Property, Borrower hereby represents and warrants as follows:
(a) Except as expressly described on SCHEDULE 6.26, no portion of any
improvement on any such Property is located in an area identified by the
Secretary of Housing and Urban Development or any successor thereto as an area
having special flood hazards pursuant to the National Flood Insurance Act of
1968 or the Flood Disaster Protection Act of 1973, as amended, or any successor
law, or, if located within any such area, Borrower has obtained and will
maintain the insurance prescribed in SECTION 6.20 hereof.
(b) To the Borrower's knowledge, except as expressly described on
SCHEDULE 6.26, each such Property and the development, use and occupancy thereof
are in material compliance with all applicable zoning ordinances (without
reliance upon adjoining or other properties), building codes, land use and
Environmental Laws, and other laws regulating the development, use and occupancy
of real property ("APPLICABLE LAWS").
(c) Except as expressly described on SCHEDULE 6.26, each such Property
is served by all utilities required for the current and contemplated uses
thereof. All utility service is provided by public utilities and such Property
has accepted or is equipped to accept such utility service.
(d) Except as expressly described on SCHEDULE 6.26, all public roads
and streets necessary for service of and access to each such Property for the
current or contemplated use thereof have been completed, are serviceable and
all-weather and are physically and legally open for use by the public.
(e) Except as expressly described on SCHEDULE 6.26, each such Property
is served by public water and sewer systems.
(f) Except as expressly described on SCHEDULE 6.26, each such Property
is free of any patent or, to the best knowledge of Borrower and its
Subsidiaries, latent structural or other material defect or deficiency. Each
such Property is free of damage and waste that would
45
materially and adversely affect its value, is in good repair and there is no
deferred maintenance other than ordinary wear and tear. Each such Property is
free from damage caused by fire or other casualty. There is no pending or, to
the best knowledge of Borrower after due inquiry, threatened condemnation
proceedings affecting any such Property, or any material part thereof.
(g) Except as expressly described on SCHEDULE 6.26, all liquid and
solid waste disposal, septic and sewer systems located on each such Property are
in a good and safe condition and repair and are in compliance with all
Applicable Laws with respect to such systems.
(h) Except as expressly described on SCHEDULE 6.26, all improvements
on each such Property, lie within the boundaries and building restrictions of
the legal description of record of such Property no such improvements encroach
upon any adjoining property, and no improvements on adjoining properties
encroach upon such Property or easements benefiting such Property. All
amenities, access routes or other items that benefit such Property are under
direct control of Borrower or one of its Subsidiaries, constitute permanent
easements that benefit all or part of such Property or are public property, and
such Property, by virtue of such easements or otherwise, is contiguous to a
physically open, dedicated all weather public street, and has the necessary
permits for ingress and egress.
(i) Except as expressly described on SCHEDULE 6.26, there are no
delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, or other outstanding charges affecting
any such Property except to the extent such items are being contested in good
faith by appropriate proceedings and as to which adequate reserves have been
provided.
(j) Except as expressly described on SCHEDULE 6.26, with respect to
each parcel of Eligible Land, each required performance bond, surety or other
security has been issued to and in favor of and unconditionally accepted by each
relevant governmental authority, all plans, specifications and drawings for
improvements have been approved by all relevant governmental authorities, and
all necessary easements, licenses, permits and other authorizations have been
granted for the development thereof (including, without limitation, demolition,
grading and construction permits).
Any breach of the representations or warranties in clauses (a) through (j)
of this SECTION 6.26 shall disqualify such Property from being an Unencumbered
Asset but shall not per se constitute an Event of Default or Default under this
Agreement.
6.27 RELATIONSHIP OF THE BORROWER. The Credit Parties are engaged as an
integrated group in the business of owning, developing operating and selling
real estate. The Credit Parties require financing on such a basis that funds can
be made available from time to time to such entities, to the extent required for
the continued successful operation of their integrated operations. The Advances
to be made to the Borrower under this Agreement are for the purpose of financing
the integrated operations of the Credit Parties, and each of the Credit Parties
expects to derive benefit, directly or indirectly, from the Advances, both
individually and as a member of the integrated group, since the financial
success of the operations of Borrower and each Guarantor is dependent upon the
continued successful performance of the integrated group as a whole.
46
6.28 NO SIDE DEALS. None of the Borrower or its Subsidiaries or Affiliates
have entered into any written or oral agreements, arrangements or understandings
with any Lender or any Affiliate of any Lender relating to the Facility or the
Loan Documents, except as otherwise disclosed in this Agreement.
ARTICLE VII
FINANCIAL COVENANTS
The Borrower covenants and agrees that, so long as the Commitment of any
Lender shall remain in effect and until full and final payment of all
Obligations, without the prior written consent of the Required Lenders, it shall
not, and shall cause the other Credit Parties not to:
7.1 MINIMUM CONSOLIDATED NET WORTH. As of the end of any fiscal quarter,
permit Consolidated Net Worth to be less than the sum of (i) $175,000,000, PLUS
(ii) an amount equal to seventy-five percent (75%) of the aggregate proceeds
received by Borrower (net of customary related fees and expenses) in connection
with any equity offering (including the issuance of shares in the General
Partner or units in the Borrower) after the Agreement Execution Date.
7.2 MAXIMUM ADJUSTED LEVERAGE RATIO. As of the end of any fiscal quarter,
permit the sum of (i) Consolidated Total Indebtedness PLUS (ii) the purchase
price for all Build to Suit Projects to exceed 55% of the sum of (i) Gross Asset
Value plus (ii) the imputed value of all Build to Suit Projects.
7.3 MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO. As of the end of any
fiscal quarter, permit the ratio of EBITDA to Interest Expense to be less than
2.00:1.
7.4 MINIMUM FIXED CHARGE COVERAGE RATIO. As of the end of any fiscal
quarter, permit the ratio of EBITDA to Fixed Charges to be less than 1.75:1.
7.5 MAXIMUM UNENCUMBERED ASSET COVERAGE RATIO. As of the end of any fiscal
quarter, permit Consolidated Unsecured Debt to exceed 50% of the Value of
Unencumbered Assets.
7.6 MINIMUM UNENCUMBERED ASSET INCOME TO UNSECURED INTEREST. As of the last
day of any fiscal quarter, permit the ratio obtained by dividing (a) the
aggregate Property Operating Income from all Unencumbered Assets qualifying for
inclusion in the calculation of Value of Unencumbered Assets for such quarter by
(b) Interest Expense on all Consolidated Unsecured Debt for such quarter to be
less than 2.00 to 1.
7.7 MAXIMUM SECURED DEBT TO GROSS ASSET VALUE. As of the end of any fiscal
quarter, permit Consolidated Secured Debt to exceed 35% of Gross Asset Value.
7.8 MAXIMUM DIVIDEND PAYOUT RATIO. Pay out any distributions to the
shareholders of the General Partner which would cause the aggregate amount of
distributions in any period of four consecutive fiscal quarters to be in excess
of 90% of its Funds From Operations for such period; except that net gain
realized upon a sale of a Property may also be distributed even if such
distribution would not otherwise be permitted under the terms of this sentence,
but only if
47
after giving effect to any such distribution none of the other covenants in this
Agreement would be violated.
Compliance with each of the foregoing financial covenants shall be measured
and certified as of December 31, 2000 and on the last day of each fiscal quarter
in accordance with SECTION 8.2 hereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as the Commitment of any
Lender shall remain available and until the full and final payment of all
Obligations incurred under the Loan Documents it will:
8.1 NOTICES. Promptly give written notice to Agent of:
(a) all litigation or arbitration proceedings affecting the Borrower
or any of the other Credit Parties where the amount claimed is $5,000,000 or
more;
(b) any Default or Event of Default, specifying the nature and the
period of existence thereof and what action has been taken or been proposed to
be taken with respect thereto;
(c) all claims filed against any of the Property which, if adversely
determined, could have a Material Adverse Effect;
(d) the occurrence of any other event which might have a Material
Adverse Effect;
(e) any Reportable Event or any "prohibited transaction" (as such term
is defined in Section 4975 of the Code) in connection with any Plan or any trust
created thereunder, which may, singly or in the aggregate materially impair the
ability of any of the Credit Parties to repay any of its obligations under the
Loan Documents, describing the nature of each such event and the action, if any,
such Credit Party proposes to take with respect thereto;
(f) any notice from any federal, state, local or foreign authority
regarding any Hazardous Material, asbestos, or other environmental condition,
proceeding, order, claim or violation affecting any of the Properties.
8.2 FINANCIAL STATEMENTS, REPORTS, ETC. The Borrower shall maintain, for
itself and each entity in the Consolidated Group, a system of accounting
established and administered in accordance with GAAP, and furnish to the
Lenders:
(i) as soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, for the Consolidated Group an
unaudited consolidated balance sheet as of the close of each such period
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Consolidated Group for such period and
the portion of the fiscal year
48
through the end of such period, setting forth in each case in comparative
form the corresponding figures for the previous year, all certified by a
Qualified Officer of the General Partner;
(ii) As soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, for the Consolidated Group, related
reports in form and substance satisfactory to the Lenders, all certified by
a Qualified Officer of the General Partner, including updates of SCHEDULES
6.1, 6.25 and 6.26 of this Agreement, a statement of Funds From Operations,
a description of Unencumbered Assets, a listing of capital expenditures (in
the level of detail as currently disclosed in Borrower's "Supplemental
Information"), a report listing and describing all newly formed or acquired
Subsidiaries and all newly acquired Properties, including their cost and
Indebtedness assumed in connection with such acquisition, if any, summary
information for all Property, including, without limitation, occupancy
rates (including Leased Space), square footage, property type, date
acquired or built, Gross Revenues, Property Operating Income, operating
expenses, capital expenditures, the status of development, and such other
information as may be requested (including, without limitation, operating
statements) to evaluate the quarterly compliance certificate delivered as
provided below;
(iii) As soon as available but in no event later than the fifth
Business Day after the date such reports are to be filed with the
Securities Exchange Commission, copies of any Forms 10K, 10Q, 8K, and any
other annual, quarterly, monthly or other reports, copies of all
registration statements and any other public information which the
Consolidated Group files with the Securities Exchange Commission or other
governmental authority, and to the extent any of such reports contains
information furnished under other subsections of this SECTION 8.2, the
information need not be separately furnished;
(iv) As soon as available, but in any event not later than 90 days
after the close of each fiscal year of the Consolidated Group, a
consolidated and, if available, consolidating balance sheet of the
Consolidated Group as of the end of that fiscal year and related
consolidated and, if available, consolidating statements of income,
retained earnings, cash flows and shareholders' equity for that fiscal
year, in each case with accompanying notes and schedules, prepared in
accordance with GAAP and audited by a firm of independent certified public
accountants of recognized standing selected by Borrower and acceptable to
the Agent, which accountants shall have issued an unqualified audit report
thereon;
(v) As soon as available, but in any event not later than 90 days
after the close of each fiscal year of the Consolidated Group, reports in
form and substance reasonably satisfactory to the Lenders, certified by a
Qualified Officer of the General Partner containing Property Operating
Income for each individual Property;
(vi) Within thirty (30) days after the beginning of each fiscal year
of Consolidated Group, a projection in reasonable detail and in form and
substance
49
satisfactory to the Agent, on an annual basis, of the assets, liabilities,
cash flow and earnings of the Consolidated Group for that fiscal year and
the following fiscal year;
(vii) As soon as available, but in any event not later than three
Business Days after receipt thereof by any entity in the Consolidated
Group, all quarterly financial statements, operating reports and other
financial and operating information regarding Investment Affiliates and/or
Property owned by any Investment Affiliate;
(viii) As soon as available, but in any event not later than 120 days
after the close of each fiscal year of each Investment Affiliate, a balance
sheet of such Investment Affiliate as of the end of that fiscal year and
related statements of income, retained earnings, cash flow and
shareholders' equity for that fiscal year, with accompanying notes and
schedules, prepared in accordance with GAAP and in a form acceptable to
Agent;
(ix) Not later than forty-five (45) days after the end of each of the
first three fiscal quarters, and not later than ninety (90) days after the
end of the fiscal year, a compliance certificate in substantially the form
of EXHIBIT F hereto signed by a Qualified Officer of the General Partner
confirming that the Borrower is in compliance with all of the covenants of
the Loan Documents, showing the calculations and computations necessary to
determine compliance with the financial covenants contained in this
Agreement (including such schedules and backup information as may be
necessary to demonstrate such compliance) and stating that no Default or
Event of Default exists, or if any Default or Event of Default exists,
stating the nature and status thereof;
(x) As soon as possible and in any event within 10 Business Days after
any Reportable Event has occurred with respect to any Plan, a statement,
signed by a Qualified Officer of the General Partner, describing said
Reportable Event and within 20 days after such Reportable Event, a
statement signed by such officer describing the action which Borrower
proposes to take with respect thereto; and (b) within 10 Business Days of
receipt, any notice from the Internal Revenue Service, PBGC or Department
of Labor with respect to a Plan regarding any excise tax, proposed
termination of a Plan, prohibited transaction or fiduciary violation under
ERISA or the Code which could result in any liability to Borrower or any
member of the Controlled Group in excess of $100,000; and (c) within 10
Business Days of filing, any Form 5500 filed by Borrower with respect to a
Plan, or any member of the Controlled Group which includes a qualified
accountant's opinion.
(xi) As soon as possible and in any event within 10 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect that any
entity in the Consolidated Group or Investment Affiliate is or may be
liable to any Person as a result of the release by such entity, or any of
its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation
of any federal, state or local environmental,
50
health or safety law or regulation by the Borrower or any of its
Subsidiaries or Investment Affiliates, which, in either case, could be
reasonably likely to have a Material Adverse Effect;
(xii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports, notices and proxy
statements so furnished, provided that to the extent any of such
information has been furnished under other subsections of this SECTION 8.2,
such information need not be separately furnished;
(xiii) As soon as possible, and in any event within 10 days after the
Borrower knows of any fire or other casualty or any pending or threatened
condemnation or eminent domain proceeding with respect to all or any
material portion of any of the Property, a statement signed by a Qualified
Officer of General Partner, describing such fire, casualty or condemnation
and the action Borrower intends to take with respect thereto; and
(xiv) Such supplements to the foregoing documents and other
information (including, without limitation, non-financial information) as
the Agent or any Lender may from time to time reasonably request.
8.3 EXISTENCE AND CONDUCT OF OPERATIONS. Except as otherwise expressly
permitted herein (including any transaction allowed under SECTION 9.8 hereof),
the Borrower shall, and shall cause each of the other Credit Parties to,
maintain and preserve its existence and all rights, privileges and franchises
now enjoyed and necessary for the operation of its business, including remaining
in good standing in each jurisdiction in which business is currently operated,
except where the failure to be qualified or authorized as a foreign entity would
not reasonably be expected to have a Material Adverse Effect; provided, however,
that Borrower shall be permitted to dissolve GLR No. 1, Inc., GLR No. 2, Inc.
and/or GLR No. 3 (none of which currently has any material assets), provided
that any material assets owned by any such entity at the time of its dissolution
shall be conveyed to either Borrower or a Guarantor. The Borrower shall, and
shall cause each of the other Credit Parties to, carry on and conduct their
respective businesses in substantially the same manner and in substantially the
same fields of enterprise as presently conducted. The Borrower shall, and shall
cause each of the other Credit Parties to, do all things necessary to remain
duly incorporated and/or duly qualified, validly existing and in good standing
as a real estate investment trust, corporation, general partnership, limited
liability company or limited partnership, as the case may be, in its
jurisdiction of incorporation/formation. The Borrower shall, and shall cause
each of the other Credit Parties to, maintain all requisite authority to conduct
its business in each jurisdiction in which any of the Properties are located
and, except where the failure to be so qualified would not have a Material
Adverse Effect, in each jurisdiction required to carry on and conduct its
businesses in substantially the same manner as it is presently conducted, and,
specifically, neither the Borrower nor its Subsidiaries will undertake any
business other than the acquisition, development, ownership, management,
operation and leasing of office properties and ancillary businesses specifically
related thereto, except that the Borrower and its Subsidiaries and Investment
Affiliates may invest in other assets subject to the following limitations with
respect to the following specified categories of assets:
- ----------------------------------------------------------------- ----------------------------------
(i) Land(1) Not to exceed
10% of Gross Asset Value
- ----------------------------------------------------------------- ----------------------------------
51
- ----------------------------------------------------------------- ----------------------------------
(ii) property holdings other than office properties and Not to exceed
ancillary businesses (excluding cash, Cash Equivalents, 10% of Gross Asset Value
and Indebtedness of any Subsidiary to the Borrower)(2)
- ----------------------------------------------------------------- ----------------------------------
(iii) stock holdings other than in Subsidiaries(1) Not to exceed
5% of Gross Asset Value
- ----------------------------------------------------------------- ----------------------------------
(iv) mortgages(1) Not to exceed
10% of Gross Asset Value
- ----------------------------------------------------------------- ----------------------------------
(v) joint ventures and partnerships (both consolidated and Not to exceed
unconsolidated)(3) 10% of Gross Asset Value
- ----------------------------------------------------------------- ----------------------------------
(vi) projects under development(4) Not to exceed
15% of Gross Asset Value
- ----------------------------------------------------------------- ----------------------------------
(vii) properties ground leased under Approved Ground Leases Not to exceed
(other than the currently-existing Firstar ground lease) 20% of Gross Asset Value
----------------------------------------------------------------- ----------------------------------
(viii) total investment in all of categories (i) - (vii) above(5) Not to exceed
25% of Gross Asset Value
- ----------------------------------------------------------------- ----------------------------------
(1)valued at the lower of acquisition cost or market value.
(2)calculated as the quotient of (x) annualized Net Operating Income generated
from such investment, divided by (y) 15%.
(3)valued in accordance with GAAP
(4)valued at the acquisition price in the applicable purchase contract in the
case of Build to Suit Projects not yet acquired (which shall constitute
investments for purposes of this covenant) and in accordance with GAAP for other
projects under development.
(5)calculated so that no asset shall be included more than once
even if such asset falls within more than one of the foregoing categories.
Notwithstanding anything to the contrary contained in this SECTION 8.3, (a)
category (iii) above shall not be deemed to include an interest in a joint
venture or partnership, and (b) category (v) above shall not be deemed to
include any Eligible Joint Venture which is a Guarantor.
8.4 MAINTENANCE OF PROPERTIES. The Borrower shall, and shall cause the
other Credit Parties to, maintain, preserve, protect and keep the Properties in
good and safe repair, working order and condition, and make all necessary and
proper repairs, renewals and replacements.
8.5 INSURANCE. The Borrower shall, and shall cause the other Credit Parties
to, provide a certificate of insurance from all insurance carriers which have
issued policies with respect to any Properties within thirty (30) days after the
end of each fiscal year, evidencing that the insurance required to be furnished
to Lenders pursuant to SECTION 6.20 hereof is in full force and effect. All such
policies of insurance shall contain provisions to the effect that they may not
be canceled or materially changed without at least 30 days prior notice to
Agent. Borrower shall timely pay, or cause to be paid, all premiums on all
insurance policies required under this Agreement from time to time. Borrower
shall, and shall cause the other Credit Parties to, promptly notify the
insurance carrier or agent therefor (with a copy of such notification being
provided simultaneously to Agent) if there is any occurrence which, under the
terms of any insurance policy then in effect with respect to any of the
Properties, requires such notification. Promptly following the occurrence of any
event entitling Borrower to seek payment under an
52
insurance policy with respect to any Property, Borrower shall recalculate and
submit to Agent a new compliance certificate in the form of EXHIBIT F attached
hereto.
8.6 PAYMENT OF OBLIGATIONS. The Borrower shall, and shall cause the other
Credit Parties to, pay all taxes, assessments, governmental charges and other
obligations when due, except such as may be contested in good faith by
appropriate proceedings, and for which adequate reserves have been provided in
accordance with sound accounting principles.
8.7 COMPLIANCE WITH LAWS. The Borrower shall, and shall cause the other
Credit Parties to, comply in all material respects with all applicable laws,
rules, regulations, orders and directions of any governmental authority having
jurisdiction over Borrower, any of the other Credit Parties, or any of their
respective businesses or assets.
8.8 ADEQUATE BOOKS. The Borrower shall, and shall cause the other Credit
Parties to, maintain adequate books, accounts and records in order to provide
financial statements in accordance with GAAP and, if requested by any Lender,
permit employees or representatives of such Lender at any reasonable time and
upon reasonable notice (i) to inspect and audit the assets of the Credit Parties
or any of them, (ii) to examine or audit the inventory, books, accounts and
records of each of them and make copies and memoranda thereof, and (iii) to
consult with appropriate personnel of each of them regarding the foregoing.
8.9 ERISA. The Borrower shall, and shall cause the other Credit Parties to,
comply in all material respects with all requirements of ERISA applicable with
respect to each Plan.
8.10 MAINTENANCE OF STATUS. General Partner shall at all times continue to
have its common stock listed on the New York Stock Exchange (NYSE), and Borrower
shall take all necessary steps to maintain General Partner's status as a real
estate investment trust in compliance with all applicable provisions of the
Code.
8.11 USE OF PROCEEDS. The Borrower shall use the proceeds of the Facility
solely for the general business purposes of the Borrower, including, without
limitation, working capital needs, closing costs, and interim funding for
acquisitions and development of office properties.
8.12 PRE-ACQUISITION ENVIRONMENTAL INVESTIGATIONS. The Borrower shall, and
shall cause each of the Credit Parties to, obtain, prior to the acquisition of
each parcel of real property that it intends to acquire, an environmental report
of the scope described in EXHIBIT G attached hereto and made a part hereof.
8.13 NEW SUBSIDIARIES. The Borrower shall, from time to time, promptly
cause each Person that becomes a wholly-owned Subsidiary of General Partner or
Borrower after the Agreement Execution Date to duly execute and deliver to the
Agent a Guaranty of the Obligations. Such duly executed Guaranty, together with
the related documentation required to be furnished pursuant to SECTION 5.2(c)
hereof, shall be delivered to the Agent no later than 45 days after the end of
the fiscal quarter during which such Person became a Subsidiary of General
Partner or Borrower. Notwithstanding the foregoing requirements of this SECTION
8.13, neither the Subsidiaries formed or to be formed by Borrower known as GLR
Milwaukee Center, LLC and GLR 777 Eisenhower, LLC (the "New Project LLCs") nor
the Subsidiaries ("Managing Subsidiaries") formed or to be formed to be the
managing members of those New Project LLCs shall be required to become
Guarantors so long as (i) the New Project LLCs shall have no
53
material assets other than the single Project that each is formed to own, and
(ii) the Managing Subsidiaries have no material assets other than any ownership
interest in the New Project LLCs.
8.14 DISTRIBUTIONS. Neither the General Partner nor the Borrower shall make
any distributions which would cause a violation of any of the following
covenants:
(a) The General Partner shall not pay any distributions to its
shareholders and the Borrower shall not pay any distribution to the partners of
the Borrower if such distribution would cause a violation of SECTION 7.8 hereof;
provided, however, the Borrower may make distributions to the General Partner
which correspond in amount and timing to distributions which the General Partner
is permitted by SECTION 7.8 to make to its shareholders and other distributions
to the General Partner for "REIT Expenses" as defined in Borrower's Agreement of
Limited Partnership delivered pursuant to SECTION 5.1(b) hereof;
(b) If an Event of Default specified in SECTION 10.1 or SECTION 10.3,
or an Event of Default relating to a breach of the financial covenants contained
in ARTICLE VII above, shall have occurred and be continuing, the Borrower and
the General Partner shall make no distributions other than the minimum
distributions required under the Code to maintain the tax status of the General
Partner as a REIT, as evidenced by a certification of the principal financial or
accounting officer of the General Partner containing calculations in reasonable
detail satisfactory in form and substance to Agent; and
(c) Notwithstanding the foregoing, at any time when an Event of
Default shall have occurred and the maturity of the Obligations has been
accelerated, the Borrower and General Partner shall not make any distributions
whatsoever, directly or indirectly.
8.15 SENIOR MANAGEMENT OF BORROWER. In the event that less than three of
the following senior managers: Richard A. May, Patrick Hunt, Richard Rasley,
Raymond Braun and James Hicks are actively involved in the management of
Borrower, then Borrower will replace, at a minimum, all but one of the senior
managers who have left with individuals who are satisfactory to the Required
Lenders (whose approval shall not be unreasonably withheld or delayed more than
two Business Days) within 120 days after the date on which the third such senior
manager ceases to be actively involved in the management of Borrower.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment of any
Lender shall remain in effect and until full and final payment of all
Obligations incurred under the Loan Documents, without the prior written consent
of the Required Lenders, it shall not, and shall cause the other Credit Parties
not to:
9.1 CHANGE IN BUSINESS. Except as otherwise permitted under SECTION 8.3,
engage in any business activities or operations other than acquisition,
development, ownership, management, operation and leasing of office property and
ancillary businesses specifically related thereto.
54
9.2 CONTROL OF GENERAL PARTNER. At any time fail to have the General
Partner's management and trustees directly or indirectly control ownership of a
minimum of 3% of the sum of (i) common shares of the General Partner and (ii)
equivalent operating partnership units exchangeable for common shares of the
General Partner.
9.3 CHANGE OF BORROWER OWNERSHIP. Allow (i) the General Partner to own less
than fifty-one percent (51%) of the partnership interests in Borrower, (ii) the
Borrower to be controlled by a Person other than the General Partner, or (iii)
any pledge of, other encumbrance on, or conversion to limited partnership
interests of, any of the general partnership interests in the Borrower.
9.4 USE OF PROCEEDS. Apply or permit to be applied any proceeds of any
Advance directly or indirectly, to the funding of any purchase of, or offer for,
any share of capital stock of any publicly held corporation constituting (alone
or together with other shares owned by Borrower or its Subsidiaries) a
controlling interest in such corporation, or as part of a series of transactions
to acquire such controlling interest, unless the board of directors of such
corporation has consented to such purchase or offer and the Required Lenders
have consented to such use of the proceeds of the Facility.
9.5 TRANSFERS OF UNENCUMBERED ASSETS. Sell or otherwise dispose of (other
than the creation or continuance of Permitted Liens) any Properties or other
assets or any interest therein, if such Property or other assets, together with
all other assets which have been transferred or disposed of from the date hereof
to such date, exceeds twenty percent (20%) of the Gross Asset Value of the
Consolidated Group as of the date hereof.
9.6 LIENS. Create, incur, or suffer to exist any Lien in, of or on any of
the Properties except:
(i) Liens for taxes, assessments or governmental charges or
levies on their Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves shall have been set aside on their books;
(ii) Liens which arise by operation of law, such as carriers',
warehousemen's, landlords', materialmen and mechanics' liens and other
similar liens arising in the ordinary course of business which secure
payment of obligations not more than 30 days past due or which are
being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation;
(iv) Utility easements, building restrictions, zoning
restrictions, easements and such other encumbrances or charges against
real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way
affect the marketability of the same or interfere
55
with the use thereof in the business of the Borrower or any of the
other Credit Parties;
(v) Liens of any Subsidiary in favor of the Borrower;
(vi) Liens arising in connection with any Indebtedness permitted
hereunder to the extent such Liens will not result in a violation of
any of the provisions of this Agreement; and
(vii) Liens described in SCHEDULE 9.6 attached hereto.
Liens permitted pursuant to this SECTION 9.6 shall be deemed to be
"PERMITTED LIENS".
9.7 REGULATION U. Use any of the proceeds of the Advances to purchase or
carry any Margin Stock.
9.8 MERGERS AND DISPOSITIONS. Enter into any or allow any Subsidiary to
enter into any merger, consolidation, pool, business combination, reorganization
or liquidation, or transfer or otherwise dispose of all or a substantial portion
of its properties, except for: (i) such transactions that occur between
wholly-owned Subsidiaries; (ii) transactions where (a) Borrower or General
Partner is the surviving entity, (b) there is no change in business conducted,
(c) such transaction is not accomplished through a takeover which is opposed by
the board of directors or other equivalent governing body of the other party to
the transaction; and (d) no Default or Event of Default under the Loan Documents
results from such transaction; or (iii) transactions otherwise approved in
advance by the Required Lenders. Borrower will notify the Agent (who will
promptly notify Lenders) of any dispositions or mergers involving assets valued
in excess of 10% of the Consolidated Group's then-current Gross Asset Value and
certify compliance with covenants after giving effect to such proposed
disposition or merger, regardless of whether any consent is required.
9.9 NEGATIVE PLEDGE. Enter into or maintain any agreement with any third
party which prohibits the creation, assumption or maintenance of any Lien
securing a charge or obligation on any of its real or personal property, whether
now owned or hereafter acquired (other than with respect to this Facility and
other than such agreements relating solely to those assets constituting
collateral for the Consolidated Secured Debt).
9.10 VARIABLE RATE DEBT. The Borrower and its Subsidiaries shall not at any
time permit the outstanding principal balance of Indebtedness which bears
interest at an interest rate that is not fixed through the maturity date of such
Indebtedness to exceed an amount equal to the greater of (a) $150,000,000 and
(b) the Aggregate Commitment plus $25,000,000, unless all of such Indebtedness
in excess of such amount is subject to a swap, rate cap or other interest rate
management program reasonably approved by the Agent that effectively converts
the interest rate on such excess to a fixed rate.
9.11 BORROWER'S PARTNERSHIP AGREEMENT. Allow any material change in the
Borrower's partnership agreement, other than (i) the creation of new classes or
series of operating partnership units, (ii) the admission of additional limited
partners, and (iii) changes in the ordinary course of business, without the
prior consent of the Agent.
56
9.12 GENERAL PARTNER'S ASSETS. Allow the General Partner to invest in or
own any material assets directly other than its partnership interest in
Borrower, except investments in which the General Partner owns a general or
limited partner interest in any entity in which the Borrower owns the remaining
partnership interests.
ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall constitute
an Event of Default:
10.1 NONPAYMENT OF PRINCIPAL. The Borrower fails to pay any principal
portion of the Obligations when due, whether on the Maturity Date or otherwise.
10.2 CERTAIN COVENANTS. The Borrower, General Partner and/or Consolidated
Group, as the case may be, is not in compliance with any one or more of the
provisions of ARTICLE VII or ARTICLE IX (excluding SECTION 9.1) hereof.
10.3 NONPAYMENT OF INTEREST AND OTHER OBLIGATIONS. The Borrower fails to
pay any interest or other portion of the Obligations, other than payments of
principal, and such failure continues for a period of five (5) Business Days
after the date such payment is due.
10.4 CROSS DEFAULT. Any monetary default occurs (after giving effect to any
applicable cure period) under any Indebtedness (which includes liability under
guaranties) of any entity in the Consolidated Operating Group, singly or in the
aggregate, in excess of Five Million Dollars ($5,000,000), other than
Indebtedness arising from the purchase of personal property or the provision of
services, the amount of which is being contested by Borrower in good faith by
appropriate proceedings; or any non-monetary default occurs (after giving effect
to any applicable cure period) under any Indebtedness (which includes liability
under guaranties) of any entity in the Consolidated Operating Group, singly or
in the aggregate, in excess of Twenty-Five Million Dollars ($25,000,000).
10.5 LOAN DOCUMENTS. Any Loan Document is not in full force and effect in
accordance with its terms, or a default has occurred and is continuing
thereunder after giving effect to any cure or grace period in any such document.
10.6 REPRESENTATION OR WARRANTY. At any time or times hereafter any
representation or warranty set forth in ARTICLE VI or ARTICLE VII of this
Agreement or in any other Loan Document or in any statement, report or
certificate now or hereafter made by any entity in the Consolidated Operating
Group to the Lenders or the Agent is not true and correct in any material
respect.
10.7 COVENANTS, AGREEMENTS AND OTHER CONDITIONS. The Borrower fails to
perform or observe any of the covenants, agreements and conditions contained in
this Agreement or any of the other Loan Documents not specifically referred to
in any other Section of this ARTICLE X, in accordance with the terms hereof or
thereof, and such Default continues unremedied for a period of thirty (30) days
after written notice from Agent, provided, HOWEVER, that if such Default is
susceptible of cure but cannot by the use of reasonable efforts be cured within
such thirty (30) day period, such Default shall not constitute an Event of
Default under this SECTION 10.7 so long
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as (i) the Borrower has commenced a cure within such thirty-day period in a
manner satisfactory to the Agent and (ii) thereafter, Borrower is proceeding to
cure such default continuously and diligently and in a manner reasonably
satisfactory to Agent and (iii) such default is cured to Agent's satisfaction
not later than sixty (60) days after the expiration of such thirty (30) day
period.
10.8 NO LONGER GENERAL PARTNER. The General Partner shall no longer be the
sole general partner of Borrower.
10.9 MATERIAL ADVERSE CHANGE. Any of the Borrower or the Guarantors have
suffered a Material Adverse Effect or is Insolvent.
10.10 BANKRUPTCY.
(a) The Borrower, any Guarantor or any Subsidiary having more than
$10,000,000 of Equity Value (as defined below) (a "Material Subsidiary") shall
(i) have an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any substantial portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal bankruptcy laws as now
or hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent,
or seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate action to authorize or effect any of
the foregoing actions set forth in this SECTION 10.10(a), (vi) fail to contest
in good faith any appointment or proceeding described in SECTION 10.10(b) or
(vii) not pay, or admit in writing its inability to pay, its debts generally as
they become due. As used herein, the term "EQUITY VALUE" of a Subsidiary shall
mean (1) Property Operating Income of such Subsidiary's Properties owned as of
the Agreement Execution Date capitalized at a 9.75% rate, plus (2) the purchase
price of any of such Subsidiary's Properties acquired after the Agreement
Execution Date less (3) any Indebtedness of such Subsidiary
(b) A receiver, trustee, examiner, liquidator or similar official
shall be appointed for any of the Borrower, any Guarantor or any Material
Subsidiary, any substantial portion of any of their Properties or other material
assets, or a proceeding described in SECTION 10.10(a)(iv) shall be instituted
against any of the Borrower or any such Guarantor or Material Subsidiary and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of sixty (60) consecutive days.
10.11 LEGAL PROCEEDINGS. Any of the Borrower or the Guarantors is enjoined,
restrained or in any way impaired by any court order or judgment or if a notice
of lien, levy, or assessment is filed of record with respect to all or any part
of their Properties or other material assets by any governmental department,
office, agency or authority, which, alone or in the aggregate, could reasonably
be expected to have a Materially Adverse Effect, or any proceeding is filed or
commenced seeking to enjoin, restrain or otherwise impair any of said Persons
from conducting all or a substantial part of their respective business affairs,
and such proceeding is not vacated, stayed, dismissed, set aside, removed or
otherwise or remedied within ninety (90) days after the occurrence thereof.
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10.12 ERISA. The Borrower or any Guarantor shall have been notified by the
sponsor of a Plan that (i) it has incurred withdrawal liability to such Plan in
an amount which, when aggregated with all other amounts then required to be paid
to Plans by the Borrower or any Guarantor as withdrawal liability (determined as
of the date of such notification), exceeds $2,000,000 or requires payments
exceeding $1,000,000 per annum, or (ii) such Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, if as a result of
such reorganization or termination the aggregate annual contributions of the
Borrower and the other members of the Consolidated Group (taken as a whole) to
all Plans which are then in reorganization or being terminated have been or will
be increased over the amounts contributed to such Plans for the respective plan
years of each such Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $1,000,000.
10.13 FAILURE TO SATISFY JUDGMENTS. Any of the Borrower, any Guarantor or
any Material Subsidiary shall fail within sixty (60) days to pay, bond or
otherwise discharge any judgments or orders for the payment of money in an
amount which, when added to all other judgments or orders outstanding against
the Borrower, any Guarantor or any Material Subsidiary would exceed Ten Million
Dollars ($10,000,000) in the aggregate, which have not been stayed pending
appeal, unless the liability is insured against and the insurer has not
challenged coverage of such liability.
10.14 ENVIRONMENTAL REMEDIATION. Failure to remediate within the time
period required by law or governmental order, (or within a reasonable time in
light of the nature of the problem if no specific time period is so
established), environmental problems in violation of applicable law related to
any Property or Properties where the estimated costs of remediation are in the
aggregate in excess of Five Million Dollars ($5,000,000), in each case after all
administrative hearings and appeals have been concluded.
10.15 FAILURE TO MAINTAIN REIT STATUS. General Partner shall fail to have
its common shares of beneficial interest listed on the New York Stock Exchange
(NYSE) or any other national securities exchange or fail to maintain its status
as a real estate investment trust in compliance with all applicable provisions
of the Code.
ARTICLE XI
ACCELERATION, WAIVERS AMENDMENTS AND REMEDIES
11.1 ACCELERATION. If any Event of Default described in SECTION 10.10
hereof occurs, the obligation of the Lenders to make Advances hereunder and of
the Issuing Bank to issue Facility Letters of Credit shall automatically
terminate and the Obligations shall immediately become due and payable. If any
other Event of Default described in ARTICLE X hereof shall have occurred and be
continuing, the Agent may (and upon demand of the Required Lenders, shall)
notify Borrower that such obligation to make Advances and to issue Facility
Letters of Credit has terminated and the Obligations shall immediately become
due and payable.
In addition to the foregoing, following the occurrence of and during the
continuance of an Event of Default and so long as any Facility Letter of Credit
has not been fully drawn and has not been cancelled or expired by its terms,
upon written demand by the Required Lenders, the Borrower shall deposit in the
Letter of Credit Collateral Account cash in an amount equal to the aggregate
undrawn face amount of all outstanding Facility Letters of Credit and all fees
and
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other amounts due or which may become due with respect thereto. The Borrower
shall have no control over funds in the Letter of Credit Collateral Account,
which funds shall be invested by the Agent from time to time in its discretion
in certificates of deposit of Bank One having a maturity not exceeding thirty
(30) days. Such funds shall be promptly applied by the Agent to reimburse the
Issuing Bank for drafts drawn from time to time under the Facility Letters of
Credit. Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the Agent is
otherwise directed by a court of competent jurisdiction, be promptly paid over
to the Borrower.
11.2 PRESERVATION OF RIGHTS; AMENDMENTS. No delay or omission of the
Lenders in exercising any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or Event of Default or an
acquiescence therein, and the making of an Advance notwithstanding the existence
of a Default or Event of Default or the inability of the Borrower to satisfy any
conditions precedent to such Advance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment, release or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Agent and the number of Lenders required hereunder and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative, and may be exercised
concurrently or successively, and all shall be available to the Lenders until
the Obligations have been paid in full.
ARTICLE XII
THE AGENT
12.1 APPOINTMENT. Bank One is hereby irrevocably appointed Agent hereunder
and under each other Loan Document, and each of the Lenders irrevocably
authorizes the Agent to act as the agent of such Lender. The Agent agrees to act
as such upon the express conditions contained in this ARTICLE XII. The Agent
shall not have any duties or responsibilities except those expressly set forth
herein and shall not have a fiduciary relationship in respect of any Lender by
reason of this Agreement. Notwithstanding the use of the defined term "Agent,"
it is expressly understood and agreed that the Agent shall not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
12.2 POWERS. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto (but
subject to SECTION 14.13 below). The Agent shall have no implied duties,
obligations or liabilities to the Lenders, or any obligation to
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the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Agent. Only Agent may perform
the duties reserved to it under the Loan Documents and no Lender shall act or
purport to act on behalf of the other Lenders or Agent on any such matters.
Without limiting the generality of the foregoing:
(a) Agent shall have the exclusive right to collect from Borrower and
any Guarantor, or third parties, on account of the Facility, including,
principal, interest, fees, protective advances and prepayment premiums (if any),
whether such sums are received directly from Borrower, Guarantor, or any other
Persons, or are obtained by right of offset by Agent of any kind, or by
enforcement of the Loan Documents. Agent will receive and hold all collections
with respect to the Loan for the benefit of the Lenders in accordance with their
Percentages or as otherwise provided herein.
(b) If any Lender shall receive any payments or property in connection
with the Facility (whether or not voluntary), from any Person other than Agent,
such Lender shall transfer to Agent all such payments or property within one
Business Day of receipt.
(c) No Lender shall independently initiate any judicial action or
other proceeding against Borrower or any Guarantor with respect to the Facility.
12.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower or the Lenders for
any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith, except for its or
their own gross negligence or willful misconduct.
12.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
condition specified in ARTICLE V, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith.
12.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or, in the case of any waiver or amendment listed in SECTION
14.13(a) hereof, all of the Lenders) and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders and on
all holders of Notes. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first receive such advise or concurrence, if it so requests, of the Required
Lenders and shall first be indemnified to its satisfaction by the Lenders pro
rata against any and all liability, cost and expense that it may incur by reason
of taking or continuing to take any such action.
12.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or
61
attorneys-in-fact selected by it with reasonable care. The Agent shall be
entitled to engage and rely upon advice of legal counsel (including the
Borrower's counsel), independent accountants and other professionals and experts
selected by the Agent concerning all matters pertaining to the agency hereby
created and its duties hereunder and under any other Loan Document. The Borrower
and the Lenders agree that the Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Agent is
entitled under Articles XII and XIV.
12.7 RELIANCE ON DOCUMENTS. The Agent shall be entitled to rely upon any
Note, writing, notice, consent, certificate, facsimile, affidavit, letter,
telegram, statement, paper, document or other communication believed by it to be
genuine and correct and to have been signed, sent or otherwise communicated by
the proper person or persons.
12.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify upon demand the Agent ratably in accordance with their
respective Percentages (i) for any amounts not reimbursed by the Borrower for
which the Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses (including reasonable attorneys' fees)
incurred by the Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration, modification and enforcement
of the Loan Documents, if not paid by Borrower, and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Lender shall
be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. Each Lender shall indemnify the
Agent and the other Lenders with respect to claims, liabilities, damages, costs,
losses and expenses (including, without limitation, attorneys' fees) arising
from or relating to the failure of such indemnifying Lender to satisfy its
obligations under this Agreement and the other Loan Documents.
12.9 RIGHTS AS A LENDER. With respect to the Commitment, Advances made by
it, the Note issued to it and otherwise, the Agent shall have the same rights
and powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its capacity as a Lender. The Agent, in its capacity as a Lender, may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person. The Lenders acknowledge that Agent and its Affiliates now
or in the future may have banking or other financial relationships, including
being an agent on other loans, with Borrower and its Affiliates, as though Bank
One were not Agent hereunder and without notice to or consent of the Lenders.
Each Lender hereby expressly waives any objection to such actual or potential
conflict of interest. The Lenders acknowledge that in the course of such
activities, Bank One or its Affiliates may receive
62
information regarding Borrower or its Affiliates and acknowledge that Agent
shall be under no obligation to provide such information to them, whether or not
confidential.
12.10 LENDER CREDIT DECISION. Each Lender acknowledges that neither the
Agent nor any of its agents has made any representation or warranty to such
Lender and that no action or statement hereafter made or taken by the Agent or
any of its agents shall be deemed to be representation or warranty by the Agent
to such Lenders. Each Lender further acknowledges that it has, independently and
without reliance upon the Agent or any other Lender and based on the financial
statements prepared by the Borrower and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and the other Loan Documents. Each Lender also acknowledges
that it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis and decisions in taking or
not taking action under this Agreement and the other Loan Documents.
12.11 SUCCESSOR AGENT. Each Lender agrees that Bank One shall serve as
Agent at all times during the term of this Facility, except that Bank One may
resign as Agent at any time, in its sole discretion, upon thirty (30) days'
prior written notice to the Lenders and Borrower. Bank One (or any successor
Agent) may be removed as Agent for good cause by written notice received by
Agent from the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and
the Lenders, a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving notice of resignation
or receiving notice of removal, then the retiring Agent may appoint, on behalf
of the Borrower and the Lenders, a successor Agent. Such successor Agent shall
be a commercial bank having capital and retained earnings of at least
$100,000,000. 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
(including the right to receive any fees for performing such duties which accrue
thereafter), and the retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After any retiring
Agent's resignation hereunder as Agent, the provisions of this ARTICLE XII shall
continue in effect for its benefit and that of the other Lenders in respect of
any actions taken or omitted to be taken by it while it was acting as the Agent
hereunder and under the other Loan Documents.
12.12 NOTICE OF DEFAULTS. If a Lender becomes aware of a Default or Event
of Default, such Lender shall notify the Agent of such fact. Upon receipt of
such notice that a Default or Event of Default has occurred, the Agent shall
notify promptly each of the Lenders of such fact. Except for Defaults in the
payment of principal, interest and fees payable to Agent for the account of the
Lenders and such other Obligations for which Agent is expressly responsible for
determining Borrower's compliance, Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, unless Agent
shall have received written notice from a Lender or Borrower referring to the
Loan, describing such Default or Event of Default and stating that such notice
is a "notice of default". Agent will promptly notify the Lenders of any such
payment Defaults or Defaults in such other Obligations and of its receipt of any
such notice. Agent shall take action with respect to such Default or Event of
Default in accordance with the provisions of this Agreement and the Loan
Documents.
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12.13 REQUESTS FOR APPROVAL. If the Agent requests in writing the consent
or approval of a Lender, whether or not such consent or approval is required
hereunder (and no such requirement shall be inferred from any such request),
such Lender shall respond and either approve or disapprove definitively in
writing to the Agent within seven (7) Business Days (or sooner if such notice
specifies a shorter period based on Agent's good faith determination that
circumstances warrant an earlier response) after such written request from the
Agent. If any Lender does not so respond, that Lender shall be deemed to have
disapproved the request. Upon request, the Agent shall notify the Lenders which
Lenders, if any, failed to respond to a request for approval.
12.14 COPIES OF DOCUMENTS. Agent shall promptly deliver to each of the
Lenders copies of all notices of default and other formal notices sent to or
received by the Agent pursuant to SECTION 15.1 of this Agreement. Within fifteen
(15) Business Days after a request by a Lender to the Agent for other documents
furnished to the Agent by the Borrower, the Agent shall provide copies of such
documents to such Lender except where this Agreement obligates Agent to provide
copies in a shorter period of time.
12.15 DEFAULTING LENDERS. At such time as a Lender becomes a Defaulting
Lender, such Defaulting Lender's right to vote on matters which are subject to
the consent or approval of the Required Lenders, such Defaulting Lender or all
Lenders shall be immediately suspended until such time as the Lender is no
longer a Defaulting Lender. If a Defaulting Lender has failed to fund its
Percentage of any Advance and until such time as such Defaulting Lender
subsequently funds its Percentage of such Advance, all Obligations owing to such
Defaulting Lender hereunder shall be subordinated in right of payment, as
provided in the following sentence, to the prior payment in full of all
principal of, interest on and fees relating to the Loans funded by the other
Lenders in connection with any such Advance in which the Defaulting Lender has
not funded its Percentage (such principal, interest and fees being referred to
as "Senior Loans" for the purposes of this section). All amounts paid by the
Borrower and otherwise due to be applied to the Obligations owing to such
Defaulting Lender pursuant to the terms hereof shall be distributed by the Agent
to the other Lenders in accordance with their respective Percentages
(recalculated for the purposes hereof to exclude the Defaulting Lender) until
all Senior Loans have been paid in full. At that point, the "Defaulting Lender"
shall no longer be deemed a Defaulting Lender. After the Senior Loans have been
paid in full equitable adjustments will be made in connection with future
payments by the Borrower to the extent a portion of the Senior Loans had been
repaid with amounts that otherwise would have been distributed to a Defaulting
Lender but for the operation of this SECTION 12.15. This provision governs only
the relationship among the Agent, each Defaulting Lender and the other Lenders;
nothing hereunder shall limit the obligation of the Borrower to repay all Loans
in accordance with the terms of this Agreement. The provisions of this SECTION
12.15 shall apply and be effective regardless of whether a Default occurs and is
continuing, and notwithstanding (i) any other provision of this Agreement to the
contrary, (ii) any instruction of the Borrower as to its desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote on
matters as provided above.
12.16 BORROWER'S DEFAULT; ENFORCEMENT. Upon the occurrence of an Event of
Default under any Loan Document, the Required Lenders shall have the right, upon
written notice to Agent, to require that Agent exercise the rights of the
Lenders as directed by the Required Lenders; provided, however, that the Lenders
shall indemnify, exonerate and hold Agent
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harmless from and against any and all claims, losses, liabilities, damages and
costs (including reasonable legal fees) incurred by Agent as a result of any
such exercise of rights at the direction of the Lenders and not resulting from
the gross negligence or willful misconduct of Agent.
12.17 WORKOUT. If Borrower is in material default under the Loan Documents
and has not cured the default within any applicable cure period, Agent may
declare by written notice to the Lenders that the Loan is "in workout" (the
"NOTICE OF WORKOUT"). The Lenders acknowledge that workouts of defaulted loans
usually are resolved by either a borrower cure of the default; or a restructure
of or other modification to the loan; or by exercising remedies; and that it is
in the interest of the Lenders to attain a resolution within a reasonable period
of time. Therefor the Lenders agree that if, after 90 days from the date of
Agent's Notice of Workout, there has been neither a cure of the default(s), nor
a restructure nor other modification executed, nor exercise of the Lenders'
remedies hereunder, then (unless otherwise directed by the Required Lenders)
Agent on behalf of the Lenders shall sue Borrower and any Guarantors for
collection of amounts owing to the Lenders, subject to and in accordance with
advice of Agent's counsel. Notwithstanding any action by Agent under this
SECTION 12.17 Agent shall follow the direction of the Required Lenders under
SECTION 12.16 above at any time. Nevertheless, unless and until the Required
Lenders shall direct Agent to the contrary, Agent shall have the right but not
the obligation to take such action as it may deem appropriate to preserve the
rights of the Lenders to recover any amounts owing under the Loan Documents,
without the consent of the Required Lenders.
12.18 BANKRUPTCY OF BORROWER. In the event of a bankruptcy by Borrower, the
Lenders shall act through Agent to petition the court, make any motion for
relief from the automatic stay, participate in any appropriate creditors'
committee, vote on a plan of reorganization or pursue other remedies or actions
in accordance with the approval of the Required Lenders or all of the Lenders,
as circumstances dictate.
12.19 RELATIONSHIP OF PARTIES. This Agreement is not intended to establish
a partnership or joint venture between Agent and the Lenders. The provisions of
the Loan Documents regarding the relationships among Agent and the Lenders and
this ARTICLE XII is intended solely to facilitate co-lending relationships among
the Lenders for the Facility. No security or investment contract under any
federal or state law is intended to be created among the Lenders or between
Agent and the Lenders. The execution of this Agreement, the performance of the
terms thereof, and the Lenders' purchase of and ownership interest in the
Facility and the Loan Documents shall not constitute any Lender as owner,
purchaser or seller of any security (as that term is defined in the Securities
Act of 1933 or the Securities Exchange Act of 1934) issued, owned, purchased or
sole by Bank One or any of its Subsidiaries or Affiliates, either as principal
or as agent for Borrower. Each Lender is purchasing and acquiring legal and
equitable ownership of its Percentage and is not making a loan to Bank One, and
no debtor-creditor relationship exists between them as a result of this
Agreement.
12.20 COUNSEL. The Lenders acknowledge that Agent's counsel has represented
and shall represent only Agent, in its capacity as Agent and Lender, in
connection with the Loan Documents and this Agreement. Each other Lender shall
retain independent legal counsel regarding all such matters, documents and
agreements. After an Event of Default, the Lenders shall enter into a joint
privilege agreement regarding the exchange of information that is or may be
subject to attorney-client privilege or related privileges. Agent's counsel
shall prepare such
65
joint privilege agreement, subject to the approval of all of the Lenders which
approval shall not be unreasonably withheld by any Lender.
ARTICLE XIII
BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of Borrower and the Lenders and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights or obligations under the Loan Documents without
the consent of all the Lenders and any assignment by any Lender must be made in
compliance with SECTION 13.3. The Agent may treat the payee of any Note as the
owner thereof for all purposes hereof unless and until such payee complies with
SECTION 13.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Agent. Any assignee
or transferee of a Note agrees by acceptance thereof to be bound by all the
terms and provisions of the Loan Documents. Any request, authority or consent of
any Person who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
13.2 PARTICIPATIONS.
(a) PERMITTED PARTICIPANTS: EFFECT. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("PARTICIPANTS"), in an amount not less
than $5,000,000 with $1,000,000 increments thereafter, participating interests
in any Advance owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and Borrower and the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan Documents.
(b) VOTING RIGHTS. Each Lender shall retain the sole right to vote its
Percentage of the Aggregate Commitment, without the consent of any Participant,
for the approval or disapproval of any amendment, modification or waiver of any
provision of the Loan Documents, provided that such Lender may grant such
Participant the right to approve any amendment, modification or waiver which
forgives principal, interest or fees or reduces the interest rate or fees
payable hereunder, postpones any date fixed for any regularly-scheduled payment
of principal of or interest on the Obligations, releases collateral beyond any
releases expressly provided for herein or extends the Maturity Date.
(c) BENEFITS OF SET-OFF. The Borrower agrees that each Participant
which has previously advised the Borrower in writing of its purchase of a
participation in a Lender's interest in its Loans shall be deemed to have the
right of setoff provided in SECTION 14.15 in
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respect of its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents. Each Lender shall retain
the right of setoff provided in SECTION 14.15 with respect to the amount of
participating interests sold to each Participant, provided that such Lender and
Participant may not each setoff amounts against the same portion of the
Obligations, so as to collect the same amount from the Borrower twice. The
Lenders agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in SECTION 14.15, agrees to share with
each Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with SECTION 14.15 as if each
Participant were a Lender.
13.3 ASSIGNMENTS.
(a) PERMITTED ASSIGNMENTS. Any Lender may, with the prior written
consent of Agent and Borrower (which consents shall not be unreasonably withheld
or delayed), in accordance with applicable law, at any time assign to one or
more Eligible Assignees (collectively, "PURCHASERS"), in an amount not less than
$5,000,000 with $1,000,000 increments thereafter, all or any part of its rights
and obligations under the Loan Documents, except that no consent of Borrower
shall be required if any Monetary Default, other material Default or Event of
Default has occurred and is continuing and that no consent of Agent or Borrower
shall ever be required for (i) any assignment to a Person directly or indirectly
controlling, controlled by or under direct or indirect common control with the
assigning Lender or (ii) the pledge or assignment by a Lender of such Lender's
Note and other rights under the Loan Documents to any Federal Reserve Bank in
accordance with applicable law. Such assignments and assumptions shall be
substantially in the form of EXHIBIT D hereto. The Borrower shall execute any
and all documents which are customarily required by such Lender (including,
without limitation, a replacement promissory note or notes in the forms provided
hereunder) in connection with any such assignment, but Borrower shall not be
obligated to pay any fees and expenses incurred by any Lender in connection with
any assignment pursuant to this Section. Any Lender selling all or any part of
its rights and obligation hereunder in a transaction requiring the consent of
the Agent shall pay to the Agent a fee of $3,500.00 per assignee to reimburse
Agent for its involvement in such assignment (except in connection with an
assignment to a branch office or Affiliate of such Lender).
(b) EFFECTIVE DATE OF ASSIGNMENT. Upon delivery to the Agent of a
notice of assignment executed by the assigning Lender and the Purchaser,
together with any consents and fee required by SECTION 13.3.(a), such assignment
shall become effective on the effective date specified in such notice of
assignment. The notice of assignment shall contain an undertaking by the
Purchaser to be bound as a Lender by this Agreement and the other Loan Documents
with the same force and effect as if it were an original signatory hereto, and a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and the Loan under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA, all in form and content satisfactory to the Agent.
On and after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by Borrower, the
67
Lenders or the Agent shall be required to release the transferor Lender with
respect to the percentage of the Commitment and Advances assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this SECTION 13.3.2, the transferor Lender, the Agent and Borrower shall make
appropriate arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.
13.4 DISSEMINATION OF INFORMATION. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and the Guarantors. Each Transferee
shall agree to keep confidential any such information which is not publicly
available.
13.5 TAX TREATMENT. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
all applicable provisions of the Code with respect to withholding and other tax
matters.
ARTICLE XIV
GENERAL PROVISIONS
14.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties
contained in this Agreement shall survive delivery of the Notes and the making
of the Advances herein contemplated.
14.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
14.3 TAXES. Any recording and other taxes (excluding franchise, income or
similar taxes) or other similar assessments or charges payable or ruled payable
by any governmental authority incurred in connection with the consummation of
the transactions contemplated by this Agreement shall be paid by the Borrower,
together with interest and penalties, if any.
14.4 HEADINGS. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
14.5 NO THIRD PARTY BENEFICIARIES. This Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
14.6 EXPENSES: INDEMNIFICATION. Subject to the provisions of this
Agreement, Borrower will pay upon demand (a) all out-of-pocket costs and
expenses incurred by the Agent or the Arranger (including the reasonable fees,
out-of-pocket expenses and other reasonable expenses of counsel, which counsel
may be employees of Agent or Arranger) in connection with
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the preparation, execution and delivery of this Agreement, the Notes, the Loan
Documents and any other agreements or documents referred to herein or therein
and any amendments thereto, (b) all out-of-pocket costs and expenses incurred by
the Agent and the Lenders (including the reasonable fees, out-of-pocket expenses
and other reasonable expenses of counsel for the Agent and each of the other
Lenders) in connection with the enforcement and protection of the rights of the
Lenders under this Agreement, the Notes, the Loan Documents or any other
agreement or document referred to herein or therein; provided, however, that the
expenses of counsel for which Borrower is obligated under this subsection (b)
shall be limited to the reasonable non-duplicative expenses of (A) a single
outside law firm representing Agent, and (B) a single outside law firm
representing all of the other Lenders as a group (which may or may not be the
same law firm representing Agent), and (c) all reasonable and customary costs
and expenses of periodic audits by the Agent's personnel of the Borrower's books
and records provided that prior to an Event of Default, Borrower shall not be
required to pay for more than one such audit during any year. The Borrower
further agrees to indemnify the Lenders, their directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
reasonable expenses (including, without limitation, all expenses of litigation
or preparation therefor, whether or not any Lender is a party thereto) which any
of them may pay or incur arising out of or relating to this Agreement, the other
Loan Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Advance hereunder,
except that the foregoing indemnity shall not apply to a Lender to the extent
that any losses, claims, etc. are the result of such Lender's gross negligence
or willful misconduct. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
14.7 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
14.8 NONLIABILITY OF THE LENDERS. The relationship between the Borrower and
the Lenders shall be solely that of borrower and lender. Neither the Agent nor
the Lenders shall have any fiduciary responsibilities to the Borrower. Neither
the Agent nor the Lenders undertake 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.
14.9 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14.10 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
69
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF THE LENDERS INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
14.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, AGENT AND LENDERS HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS
AGREEMENT, THE NOTES, OR ANY OF THE OTHER LOAN DOCUMENTS, THE LOAN, OR ANY OTHER
STATEMENTS OR ACTIONS OF ANY PARTY HERETO. EACH SUCH ENTITY ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES
THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS
WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWER'S COUNSEL
AND IS A MATERIAL INDUCEMENT FOR AGENT AND LENDERS TO MAKE THE LOAN, ENTER INTO
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL
BE EFFECTIVE AS TO EACH OF SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED
THEREIN.
14.12 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents. Any assignee or transferee of the Notes agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of the Notes, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Notes or of
any note or notes issued in exchange therefor.
14.13 ENTIRE AGREEMENT; MODIFICATION OF AGREEMENT. The Loan Documents,
together with certain letters from Agent and the Arranger to Borrower, accepted
by Borrower, embody the entire agreement among the Borrower, the Agent, and
Lenders and supersede all prior conversations, agreements, understandings,
commitments and term sheets among any or all of such parties with respect to the
subject matter hereof. Any provisions of this Agreement and the Guaranties and
any other Loan Documents may be amended or waived, or any liability thereunder
released, if, but only if, such amendment or waiver is in writing and is signed
by the Borrower, and Agent if the rights or duties of Agent in its capacity as
Agent are affected thereby, and
(a) each of the Lenders, if such amendment or waiver
70
(i) reduces or forgives any payment of principal or interest on
the Obligations or any fees payable by Borrower to such Lender
hereunder; or
(ii) postpones the date fixed for any payment of principal of or
interest on the Obligations or any fees payable by Borrower to such
Lender hereunder; or
(iii) changes the amount of such Lender's Commitment (other than
pursuant to an assignment permitted under SECTION 13.3) or the unpaid
principal amount of such Lender's Note; or
(iv) extends the Maturity Date; or
(v) Modifies Sections 7.2 (Maximum Consolidated Leverage Ratio)
or 7.5 (Maximum Unencumbered Asset Coverage Ratio) or the definitions
referenced therein; or
(vi) changes the definition of Required Lenders or modifies any
requirement for consent by each of the Lenders under this SECTION
14.13(a); or
(vii) releases any Guarantor from the obligations of any
Guaranty; or
(viii) increases the Aggregate Commitment above $200,000,000.
(b) the Required Lenders, as to all such material amendments or
material waivers not otherwise listed in SECTION 14.13(a) above.
(c) the Agent, as to all other matters of an administrative nature.
Any amendment hereto pursuant to SECTION 2.19 hereof increasing the
Aggregate Commitment shall only require the consent of the Borrower, the Agent
and the Lender providing such new or increased Commitment.
14.14 DEALINGS WITH THE BORROWER. The Lenders and their affiliates may
accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with any of the Borrower or the Guarantors or
any of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15 SET-OFF.
(a) If an Event of Default shall have occurred, each Lender shall have
the right, at any time and from time to time without notice to the Borrower, any
such notice being hereby expressly waived, to set-off and to appropriate or
apply any and all deposits of money or property or any other indebtedness at any
time held or owing by such Lender to or for the credit or the account of the
Borrower against and on account of all outstanding Obligations and all
Obligations which from time to time may become due hereunder and all other
obligations and liabilities of the Borrower under this Agreement, irrespective
of whether or not such Lender shall have made any demand hereunder and whether
or not said obligations and liabilities shall have matured.
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(b) Each Lender agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal, interest or fees due with respect to any Note
held by it which is greater than the proportion received by any other Lender in
respect of the aggregate amount of principal, interest or fees due with respect
to any Note held by such other Lender, the Lender receiving such proportionately
greater payment shall purchase such participations in the Notes held by the
other Lenders and such other adjustments shall be made as may be required so
that all such payments of principal, interest or Fees with respect to the Notes
held by the Lenders shall be shared by the Lenders pro rata according to their
respective Commitments.
14.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
14.17 DISCRETION. In exercising any discretion reserved herein to the
Agent, the Required Lenders or the Lenders, the Agent, the Required Lenders or
the Lenders, as the case may be, shall exercise such discretion in a manner
which is commercially reasonable by the standards of the commercial lending
industry with respect to credits comparable to the Facility.
ARTICLE XV
NOTICES
15.1 GIVING NOTICE. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by telex or by facsimile and addressed or delivered to such party at its
address set forth below or at such other address as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confined in the case of telexes).
15.2 CHANGE OF ADDRESS. Each party may change the address for service of
notice upon it by a notice in writing to the other parties hereto.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
BORROWER: GREAT LAKES REIT, L.P.
By: Great Lakes REIT, its general partner
By:
-------------------------------------------------
Title:
-------------------------------------------------
Address for Notices:
823 Commerce Drive
Suite 300
Oak Brook, Illinois 60523
Attention: Jim Hicks
Telephone: (630) 368-2914
Telecopy: (630) 368-2929
E-Mail: jhicks@greatlakesreit.com
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LENDERS: BANK ONE, NA, for itself and as Agent
By:
-------------------------------------------------
Title: Vice President
Commitment: $25,000,000
Percentage of Aggregate Commitment:
16.6666666667%
Address for Notices:
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Scott Solis, Corporate Real Estate
Telephone: (312) 732-7412
Telecopy (312) 732-5939
E-Mail: scott_solis@bankone.com
74
CITIZENS BANK OF RHODE ISLAND
By:
-------------------------------------------------
Title:
-------------------------------------------------
Commitment: $25,000,000
Percentage of Aggregate Commitment:
16.6666666667%
Address for Notices:
1 Citizens Plaza
4th Floor, RC 0440
Providence, RI 02903
Attn: Craig Schermerhorn
Telephone: (401) 455-5425
Telecopy: (401) 282-4485
E-Mail: craig.schermerhorn@citizensbank.com
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LASALLE BANK NATIONAL ASSOCIATION
By:
-------------------------------------------------
Title:
-------------------------------------------------
Commitment: $25,000,000
Percentage of Aggregate Commitment:
16.6666666667%
Address for Notices:
135 South LaSalle St.
Suite 1225
Chicago, IL 60603
Attn: Crystal DiDomenico
Telephone: (312) 904-8509
Telecopy: (312) 904-6691
E-Mail: crystal.didomenico@abnamro.com
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U.S. BANK NATIONAL ASSOCIATION
By:
-------------------------------------------------
Title:
-------------------------------------------------
Commitment: $25,000,000
Percentage of Aggregate Commitment:
16.6666666667%
Address for Notices:
701 Lee St.
Suite 800
Des Plaines, IL 60137
Attn: James West
Telephone: (847) 390-5612
Telecopy: (847) 390-5698
E-Mail: james.west@usbank.com
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WELLS FARGO BANK NATIONAL ASSOCIATION
By:
-------------------------------------------------
Title:
------------------------------------------------
Commitment: $25,000,000
Percentage of Aggregate Commitment:
16.6666666667%
Address for Notices:
225 West Wacker Dr.
Suite 2550
Chicago, IL 60606
Attn: Evy Horaitis
Telephone: (312) 269-4815
Telecopy: (312) 782-0969
E-Mail: horaitek@wellsfargo.com
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CHEVY CHASE BANK, FSB
By:
-------------------------------------------------
Title:
-------------------------------------------------
Commitment: $15,000,000
Percentage of Aggregate Commitment: 10%
Address for Notices:
8401 Connecticut Ave.
9th Floor
Chevy Chase, MD 20815
Attn: Jordan O'Neill
Telephone: (301) 986-7003
Telecopy: (301) 986-7516
E-Mail: jordan@chevychasebank.com
79
THE NORTHERN TRUST COMPANY
By:
-------------------------------------------------
Title:
-------------------------------------------------
Commitment: $10,000,000
Percentage of Aggregate Commitment:
6.6666666667%
Address for Notices:
50 South LaSalle St.
Chicago, IL 60075
Attn: Bob Wiarda
Telephone: (312) 444-3380
Telecopy: (312) 444-7028
E-Mail: rww1@ntrs.com
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EXHIBIT A
FORM OF GUARANTY
This Guaranty made as of ___________________, by
_____________________________ ("Guarantor"), to and for the benefit of Bank One,
NA, individually as a lender ("Bank One") and as agent ("Agent") for itself and
the other Lenders, as defined in the Credit Agreement (as defined below), and
their respective successors and assigns.
RECITALS
A. Great Lakes REIT, L.P. a Delaware limited partnership ("Borrower") has
requested that the Lenders make an unsecured revolving credit facility available
to Borrower in the aggregate principal amount of up to $200,000,000
("Facility"), and that Agent act as administrative agent with respect thereto.
B. The Lenders have agreed to make available the Facility to Borrower, and
Agent has agreed to act in said agency capacity, pursuant to the terms and
conditions set forth in an Unsecured Revolving Credit Agreement dated March 23,
2001, between Borrower, Agent and the Lenders ("Credit Agreement"), and
Guarantor desires that the Lenders continue to make Advances under the Credit
Agreement and that Agent continue to act in said agency capacity. All
capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Credit Agreement.
C. Borrower has executed and delivered to the Lenders one or more
promissory notes each dated March 23, 2001 as evidence of its indebtedness to
the Lenders with respect to the Facility (the promissory notes described above,
together with any amendments or allonges thereto, or restatements, replacements
or renewals thereof, and/or new promissory notes to new Lenders under the Credit
Agreement, are collectively referred to herein as the "Notes").
D. Guarantor is deriving and will continue to derive substantial financial
benefit from the Facility evidenced by the Notes, the Credit Agreement and the
other Loan Documents.
E. The execution and delivery of this Guaranty by Guarantor is required
pursuant to the express terms of the Credit Agreement as a condition to any
further Advances under the Facility.
AGREEMENTS
NOW, THEREFORE, in consideration of the matters described in the foregoing
Recitals, which Recitals are incorporated herein and made a part hereof, and for
other good and valuable consideration, Guarantor hereby agrees as follows:
1. Guarantor hereby jointly and severally, absolutely, unconditionally, and
irrevocably guarantees to Agent and the Lenders:
(a) the full and prompt payment of the principal of and interest on
the Notes when due, whether at stated maturity, upon acceleration or otherwise,
and at all times thereafter,
and the prompt payment of all other sums which may now be or may hereafter
become due and owing under the Notes, the Credit Agreement and/or the other Loan
Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined); and
(c) the full, complete, and punctual observance, performance, and
satisfaction of all of the obligations, duties, covenants, and agreements of
Borrower under the Credit Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness. " All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, Guarantor agrees,
on demand by Agent, to pay all the Facility Indebtedness and to perform all the
Obligations as are or then or thereafter become due and owing or are to be
performed under the terms of the Notes, the Credit Agreement and/or the other
Loan Documents, and to pay any reasonable expenses incurred by Agent or the
Lenders in protecting, preserving or defending its interest in any collateral
for the Facility, or otherwise in connection with the Facility or under any of
the Loan Documents, including, without limitation, all reasonable attorneys'
fees and costs. Agent shall have the right, at its option, either before, during
or after pursuing any other right or remedy against Borrower or Guarantor, to
perform any and all of the Obligations by or through any agent, contractor or
subcontractor, or any of their agents, of its selection, all as Agent in its
sole discretion deems proper, and Guarantor shall indemnify and hold Agent and
the Lenders free and harmless from and against any and all loss, damage, cost,
expense, injury, or liability Agent or the Lenders may suffer or incur in
connection with the exercise of its rights under this Guaranty or the
performance of the Obligations, except to the extent the same arises as a result
of the gross negligence or willful misconduct of Agent.
All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Agent for the benefit
of itself and the Lenders, and the choice by Agent of one such alternative over
another shall not be subject to question or challenge by Guarantor or any other
person, nor shall any such choice be asserted as a defense, set-off or failure
to mitigate damages in any action, proceeding or counteraction by Agent for the
benefit of itself and/or the Lenders to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Agent from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily and
should properly be a matter of business judgment, which, with hindsight after
the passage of time and events, may or may not prove to have been the best
choice to maximize recovery by Agent for the benefit of itself and the Lenders
at the lowest cost to Borrower and/or Guarantor. It is the intention of the
parties that such choice by Agent be given conclusive effect regardless of such
subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty by
Agent or the Lenders and any and all notices and demands of every kind which may
be required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor
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may have against the Borrower or which Guarantor or Borrower may have against
Agent or any of the Lenders or any holder of any Note, (iii) presentment for
payment, demand for payment, notice of nonpayment, dishonor, protest and notice
of protest, diligence in collection and any and all formalities which otherwise
might be legally required to charge Guarantor with liability, (iv) any failure
by Agent or any of the Lenders to inform Guarantor of any facts Agent or any of
the Lenders may now or hereafter know about Borrower, the Facility, or the
transactions contemplated by the Credit Agreement, it being understood and
agreed that Agent and the Lenders have no duty so to inform and that Guarantor
is fully responsible for being and remaining informed by Borrower of all
circumstances bearing on the existence or creation or risk of nonpayment of the
Facility Indebtedness or the risk of nonperformance of the Obligations, and (v)
any and all right to cause a marshaling of assets of the Borrower or any other
action by any court or governmental body with respect thereto, or to cause Agent
or any of the Lenders to proceed against any other security given to Agent or
any of the Lenders in connection with the Facility Indebtedness or the
Obligations. Credit may be granted or continued from time to time by Lenders to
Borrower without notice to or authorization from Guarantor, regardless of the
financial or other condition of Borrower at the time of any such grant or
continuation. Guarantor acknowledges that no representations of any kind
whatsoever have been made by Agent or any of the Lenders to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Agent or the Lenders except as expressly set forth in a writing
duly signed and delivered on behalf of Agent and the Lenders.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor of the time for
payment of interest or principal under the Notes or by any forbearance or delay
in collecting interest or principal under the Notes, or by any waiver under the
Credit Agreement or any other Loan Documents, or by failure or election not to
pursue any other remedies against Borrower, or by any change or modification in
the Notes, the Credit Agreement or any other Loan Documents, or by the
acceptance of any additional security or any increase, substitution or change
therein, or by the release of any security or any withdrawal thereof or decrease
therein, or by the application of payments received from any source to the
payment of any obligation other than the Facility Indebtedness, even though
Agent or the Lenders might lawfully have elected to apply such payments to any
part or all of the Facility Indebtedness, it being the intent hereof that
Guarantor shall remain liable as principal for payment of the Facility
Indebtedness and performance of the Obligations until all indebtedness has been
paid in full and the other terms, covenants and conditions of the Credit
Agreement and other Loan Documents and this Guaranty have been performed,
notwithstanding any act or thing which might otherwise operate as a legal or
equitable discharge of a surety. Guarantor further understands and agrees that
Agent and the Lenders may at any time enter into agreements with Borrower to
amend and modify the Notes, Credit Agreement or other Loan Documents, and may
waive or release any provision or provisions thereof, and, with reference to
such instruments, may make and enter into any such agreement or agreements as
Agent, the Lenders and Borrower may deem proper and desirable, without in any
manner impairing this Guaranty or any of Agent's or the Lenders' rights
hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance, and not of collection only. Guarantor
agrees that this Guaranty may be enforced by Agent and the Lenders without the
necessity at any time of resorting to or exhausting any other security or
collateral given in connection herewith or with the Facility or
83
any of the Loan Documents, or resorting to any other guaranties, and Guarantor
hereby waives the right to require Agent or the Lenders to join Borrower in any
action brought hereunder or to commence any action against or obtain any
judgment against Borrower or to pursue any other remedy or enforce any other
right. Guarantor further agrees that nothing contained herein or otherwise shall
prevent Agent and the Lenders from pursuing concurrently or successively all
rights and remedies available to it at law and/or in equity or under any of the
Loan Documents, and the exercise of any of its rights or the completion of any
of its remedies shall not constitute a discharge of any of Guarantor's
obligations hereunder, it being the purpose and intent of Guarantor that the
obligations of Guarantor hereunder shall be primary, absolute, independent and
unconditional under any and all circumstances whatsoever. Neither Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or limitation of the liability of
Borrower under the Notes, the Credit Agreement or any other Loan Documents or by
reason of Borrower's bankruptcy or by reason of any creditor or bankruptcy
proceeding instituted by or against Borrower. This Guaranty shall continue to be
effective and be deemed to have continued in existence or be reinstated (as the
case may be) if at any time payment of all or any part of any sum payable
pursuant to the Notes, the Credit Agreement or any other Loan Document is
rescinded or otherwise required to be returned by the payee upon the insolvency,
bankruptcy, or reorganization of the payer, all as though such payment had not
been made, regardless of whether Agent or any of the Lenders contested the order
requiring the return of such payment. The obligations of Guarantor pursuant to
the preceding sentence shall survive any termination, cancellation or release of
this Guaranty.
6. This Guaranty shall be assignable by Agents and/or any of the Lenders to
any assignee of all or a portion of Agents and/or such Lender's rights under the
Loan Documents.
7. If: (i) this Guaranty, any Note, the Credit Agreement or any other Loan
Document is placed in the hands of an attorney for collection or is collected
through any legal proceeding; (ii) an attorney is retained to represent Agent
and/or any of the Lenders in any bankruptcy, reorganization, receivership, or
other proceedings affecting creditors' rights and involving a claim under this
Guaranty, any Note, the Credit Agreement or any Loan Document; (iii) an attorney
is retained to provide advice or other representation with respect to the Loan
Documents in connection with an enforcement action or potential enforcement
action; or (iv) an attorney is retained to represent Agent and/or any of the
Lenders in any other legal proceedings whatsoever in connection with this
Guaranty, any Note, the Credit Agreement, any of the other Loan Documents or any
property subject thereto, then Guarantor shall pay upon demand all reasonable
attorney's fees, costs and expenses for the Agent and each of the other Lenders,
including, without limitation, court costs, filing fees, recording costs and all
other costs and expenses whatsoever incurred in connection therewith (all of
which are referred to herein as "Enforcement Costs"), in addition to all other
amounts due hereunder; provided, however, that the expenses of counsel for which
Borrower is obligated under this subsection (b) shall be limited to the
reasonable non-duplicative expenses of (A) a single outside law firm
representing Agent, and (B) a single outside law firm representing all of the
other Lenders as a group (which may or may not be the same law firm representing
Agent).
8. The parties hereto intend that each provision in this Guaranty comports
with all applicable local, state and federal laws and judicial decisions.
However, if any provision or provisions, or if any portion of any provision or
provisions, in this Guaranty is found by a court
84
of competent jurisdiction to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare such portion, provision or provisions
of this Guaranty to be illegal, invalid, unlawful, void or unenforceable as
written, then it is the intent of all parties hereto that such portion,
provision or provisions shall be given force to the fullest possible extent that
they are legal, valid and enforceable, that the remainder of this Guaranty shall
be construed as if such illegal, invalid, unlawful, void or unenforceable
portion, provision or provisions were not contained therein, and that the
rights, obligations and interest of Agent, the Lenders and the holder(s) of the
Notes under the remainder of this Guaranty shall continue in full force and
effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full, (i) Guarantor will not
seek, accept or retain for Guarantor's own account, any payment from Borrower on
account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Agent and the Lenders and shall be paid over to Agent on account of
the Facility Indebtedness without impairing or releasing the obligations of
Guarantor hereunder.
10. Guarantor waives and releases any claim (within the meaning of 11
U.S.C. Section 101) which Guarantor may have against Borrower arising from a
payment made by Guarantor under this Guaranty and agrees not to assert or take
advantage of any subrogation rights of Guarantor, Agent or the Lenders or any
right of Guarantor, Agent or the Lenders to proceed against (i) Borrower for
reimbursement, or (ii) any other guarantor or any collateral security or
guaranty or right of offset held by Agent or the Lenders for the payment of the
Facility Indebtedness and performance of the Obligations, nor shall Guarantor
seek or be entitled to seek any contribution or reimbursement from Borrower or
any other guarantor in respect of payments made by Guarantor hereunder. It is
expressly understood that the waivers and agreements of Guarantor set forth
above constitute additional and cumulative benefits given to Agent and the
Lenders for their security and as an inducement for their continuing extension
of credit to Borrower.
11. Any amounts received by Agent or Lender from any source on account of
any indebtedness may be applied by Agent toward the payment of such
indebtedness, and in such order of application, as Agent may from time to time
elect.
12. This Guaranty shall be governed by the internal laws of the State of
Illinois, without regard to its choice of law rules or conflict of laws
principles. The Guarantor hereby submits to personal jurisdiction in the State
of Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents to the jurisdiction of either the
Circuit Court of Cook County, Illinois, or the United States District Count for
the Northern District of Illinois, in any action, suit, or proceeding which
Agent or the Lenders may at any time wish to file in connection with this
Guaranty or any related matter. Guarantor hereby agrees that an action, suit, or
proceeding to enforce this Guaranty may be brought in any state or federal court
in the State of Illinois and hereby waives any objection which Guarantor may
have to the laying of the venue of any such action, suit, or proceeding in any
such court; provided, however, that the provisions of this Paragraph shall not
be deemed to preclude Agent or the Lenders from filing any such action, suit, or
proceeding in any other appropriate forum.
85
13. All notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing or by facsimile
and addressed or delivered to such party at its address set forth below or at
such other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted. Notice may be given as follows:
To the Guarantor:
c/o Great Lakes REIT
823 Commerce Drive, Ste. 300
Oak Brook, Illinois 60523
Attention: Jim Hicks
Telecopy: (630) 368-2929
With a copy to:
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attention: Richard Ungaretti, Esq.
Telecopy: (312) 977-4405
To the Agent or the Lenders:
c/o Bank One, NA, as agent
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Corporate Real Estate
Telecopy: (312) 732-5939
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
[14. Guarantors and Lender agree that such Guarantor's obligations
hereunder shall not exceed the maximum amount not subject to avoidance under
Title 11 of the United State Code, as same may be amended from time to time, or
any applicable state law (the "Bankruptcy Code"). To that end, to the extent
such obligations would otherwise be subject to avoidance under the Bankruptcy
Code if such Guarantor is not deemed to have received valuable consideration,
fair value or reasonably equivalent value for its obligations hereunder, any
such Guarantor's obligations hereunder shall be reduced to that amount which,
after giving effect
86
thereto, would not render such Guarantor insolvent, or leave such Guarantor with
an unreasonably small capital to conduct its business, or cause the Guarantor to
have incurred debts (or intended to have incurred debts) beyond its ability to
pay such debts as they mature, as such terms are determined, and at the time
such obligations are deemed to have been incurred, under the Bankruptcy Code. In
the event any Guarantor shall make any payment or payments under this Guaranty,
each other Guarantor shall contribute to such paying Guarantor an amount equal
to such non-paying Guarantor's pro rata share (based on their respective maximum
liabilities hereunder) of such payment or payments made by such paying
Guarantor, provided that such contribution right shall be subordinate and junior
in right of payment to all the Facility Indebtedness and performance of all of
the Obligations to Lender.][SECTION 14 TO BE INCLUDED ONLY IN GUARANTEES OF
SUBSIDIARY GUARANTORS.]
15. All obligations under this Guaranty are joint and several to the
Guarantor and any other party which now or hereafter guaranties the payment of
any portion of the Facility Indebtedness or the performance of the Obligations.
This Guaranty shall be binding upon the heirs, executors, legal and personal
representatives, successors and assigns of Guarantor and shall inure to the
benefit of Agent's and Lender's successors and assigns.
16. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
17. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY
WAY IN CONNECTION WITH THIS GUARANTY, OR ANY OF THE OTHER LOAN DOCUMENTS, THE
LOAN, OR ANY OTHER STATEMENTS OR ACTIONS OF ANY PARTY HERETO. EACH GUARANTOR
ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE
WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. GUARANTOR
FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY GUARANTOR
AND GUARANTOR'S COUNSEL AND IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT
AND LENDERS TO MAKE THE LOAN, ENTER INTO THE CREDIT AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF
SUCH OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty as of the date
first written above.
[________________________________________]
By:_______________________________________
Its:___________________________________
87
STATE OF )
) SS.
COUNTY OF )
I, the undersigned, a Notary Public, in and for said County, in the State
aforesaid, DO HEREBY CERTIFY, that , the of ,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that he signed and delivered the said instrument as his own free and voluntary
act and as the free and voluntary act of said corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal, this day of , 200_.
Notary Public
88
EXHIBIT B
FORM OF NOTE
March 23, 2001
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of March 23, 2001 (the "AGREEMENT") between
GREAT LAKES REIT, L.P. ("BORROWER"), Bank One, NA, a national bank organized
under the laws of the United States of America, individually and as Agent for
the Lenders (as such terms are defined in the Agreement), and the other Lenders
listed on the signature pages of the Agreement, Borrower promises to pay to the
order of _________________________ (the "Lender"), or its successors and
assigns, the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to the Agreement, without setoff or counterclaim, in
immediately available funds at the office of the Agent in Chicago, Illinois,
together with interest on the unpaid principal amount hereof at the rates and on
the dates set forth in the Agreement. The Borrower shall pay this Note ("NOTE")
in full on or before the Maturity Date in accordance with the terms of the
Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the security under and
benefits of, the Agreement and the other Loan Documents, to which Agreement and
Loan Documents, as they may be amended from time to time, reference is hereby
made for, INTER ALIA, a statement of the terms and conditions under which this
Note may be prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
If there is an Event of Default or Default under the Agreement or any other
Loan Document and Lender exercises its remedies provided under the Agreement
and/or any of the Loan Documents, then in addition to all amounts recoverable by
the Lender under such documents, Lender shall be entitled to receive reasonable
attorneys fees and expenses incurred by Lender in exercising such remedies.
Borrower and all endorsers severally waive presentment, protest and demand,
notice of protest, demand and of dishonor and nonpayment of this Note (except as
otherwise expressly provided for in the Agreement), and any and all lack of
diligence or delays in collection or enforcement of this Note, and expressly
agree that this Note, or any payment hereunder, may be extended from time to
time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT
UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
GREAT LAKES REIT, L.P.
By: Great Lakes REIT, its general partner
By:_____________________________
Its:_____________________________
90
EXHIBIT C
AMENDMENT TO
UNSECURED REVOLVING CREDIT AGREEMENT
This Amendment to the Unsecured Revolving Credit Agreement (the
"Agreement") is made as of __________, ____, by and among Great lakes REIT, L.P.
("Borrower"), Bank One, NA, as "Agent", and one or more new or existing
"Lenders" shown on the signature pages hereof.
R E C I T A L S
A. The Borrower, Agent and certain other Lenders have entered into an
Unsecured Revolving Credit Agreement dated as of March 23, 2001 (as amended, the
"Credit Agreement"). All capitalized terms used herein and not otherwise defined
shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders agreed to
provide Borrower with a revolving credit facility in an initial aggregate
principal amount of up to $200,000,000. The Borrower, the Agent and the Lenders
now desire to amend the Credit Agreement in order to, among other things, (i)
increase the Aggregate Commitment to $_______________; and (ii) admit [name of
new banks] as "Lenders" under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated into
and made part of this Amendment.
2. From and after __________, ____ (the "Effective Date") (i) [name of new
banks] shall be considered as "Lenders" under the Credit Agreement and the Loan
Documents, and (ii) [name of existing lenders] shall each be deemed to have
increased its Commitment to the amount shown next to their respective signatures
on the signature pages of this Amendment, each having a Commitment in the amount
shown next to their respective signatures on the signature pages of this
Amendment. The Borrower shall, on or before the Effective Date, execute and
deliver a Note to each new Lender and shall deliver to Agent such consents of
Guarantors, opinions and resolutions as Agent may require.
3. From and after the Effective Date, the Aggregate Commitment shall equal
____________ Dollars ($__________________.
4. For purposes of Section 15.1 of the Credit Agreement (Notices), the
address(es) and facsimile number(s) for [name of new banks] shall be as
specified below their respective signature(s) on the signature pages of this
Amendment.
5. The Borrower hereby represents and warrants that, as of the Effective
Date, there is no Default or Event of Default, the representations and
warranties contained in Article VI of the Credit Agreement are true and correct
as of such date and the Borrower has no offsets or claims against any of the
Lenders.
6. As expressly modified as provided herein, the Credit Agreement shall
continue in full force and effect.
7. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first written above.
GREAT LAKES REIT, L.P.
By: Great Lakes REIT, its General Partner
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
BANK ONE, NA, not Individually but as
Agent, as aforesaid
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
[NAME OF NEW LENDER]
By: Amount of Commitment: $
--------------------------------------- ------------
Print Name:
-------------------------------
Title:
------------------------------------
[Address of New Lender]
Phone:
Facsimile:
Attention:
92
EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_____________________ (the "Assignor") and ________________________(the
"Assignee") is dated as of ________________, 200_. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to the Unsecured
Revolving Credit Agreement (which, as it may have been amended, modified,
renewed or extended through the Effective Date is herein called the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee without recourse, and the Assignee hereby purchases and assumes from
the Assignor, an interest in and to the Assignor's rights and obligations under
the Credit Agreement such that after giving effect to such assignment the
Assignee shall have purchased pursuant to this Assignment Agreement the
percentage interest specified in Item 3 of Schedule 1 of all outstanding rights
and obligations under the Credit Agreement and the other Loan Documents. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 6 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the Agent) after
a Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. In no event will the Effective Date occur if
the payments required to be made by the Assignee to the Assignor on the
Effective Date under SECTIONS 4 AND 5 hereof are not made on the proposed
Effective Date, unless otherwise agreed to in writing by Assignor and Assignee.
The Assignor will notify the Assignee of the proposed Effective Date no later
than the Business Day prior to the proposed Effective Date. As of the Effective
Date, (i) the Assignee shall have the rights and obligations of a Lender under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Alternate Base Rate
Loans assigned to the Assignee hereunder and (ii) with respect to each ratable
LIBOR Advance made by the Assignor and assigned to the Assignee hereunder which
is outstanding on the Effective Date, (a) on the last day of the LIBOR Interest
Period therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being
hereinafter referred to as the "Fixed Due Date"), the Assignee shall pay the
Assignor an amount equal to the principal amount of the portion of such Loan
assigned to the Assignee which is outstanding on the Fixed Due Date. If the
Assignor and the Assignee agree that the applicable Fixed Due Date for such Loan
shall be the Effective Date, they shall agree, solely for purposes of dividing
interest paid by the Borrower on such Loan, to an alternate interest rate
applicable to the portion of such Loan assigned hereunder for the period from
the Effective Date to the end of the related LIBOR Interest Period (the "Agreed
Interest Rate") and any interest received by the Assignee in excess of the
Agreed Interest Rate, with respect to such Loan for such period, shall be
remitted to the Assignor. In the event a prepayment of any Loan which is
existing on the Effective Date and assigned by the Assignor to the Assignee
hereunder occurs after the Effective Date but before the applicable Fixed Due
Date, the Assignee shall remit to the Assignor any excess of the funding
indemnification amount paid by the Borrower under SECTION 4.4 of the Credit
Agreement an account of such prepayment with respect to the portion of such Loan
assigned to the Assignee hereunder over the amount which would have been paid if
such prepayment amount were calculated based on the Agreed Interest Rate and
only covered the portion of the Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from the Agent with respect to any such
Loan prior to its Fixed Due Date and (ii) any amounts of interest on Loans and
fees received from the Agent which relate to the portion of the Loans assigned
to the Assignee hereunder for periods prior to the Effective Date, in the case
of ratable Alternate Base Rate Loans or Fees, or the Fixed Due Date, in the case
of LIBOR Loans, and not previously paid by the Assignee to the Assignor.]* In
the event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or Facility Fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or Facility Fees attributable to the
period prior to the Effective Date or, in the case of LIBOR Loans, the Fixed Due
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
SECTION 4 hereof). The amount of such fee shall be the difference between (i)
the interest or fee, as applicable, paid with respect to the amounts assigned to
the Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder if
each interest rate was calculated at the rate of ___% rather than the actual
percentage used to calculate the interest rate paid by the Borrower or if the
Facility Fee was calculated at the rate of % rather than the actual percentage
used to calculate the Facility Fee paid by the Borrower, as applicable. In
addition, the Assignee agrees to pay ___% of the fee required to be paid to the
Agent in connection with this Assignment Agreement. [THIS SENTENCE CAN BE
REVISED APPROPRIATELY BASED ON HOW THE FEE IS BEING PAID.]
*Each Assignor may insert its standard provisions in lieu of the payment terms
included in SECTIONS 4 and 5 of this Exhibit.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder, that such
interest is free and clear of any adverse claim created by the Assignor and that
it has all right, power and authority to
94
enter into this Assignment Agreement. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee. Neither the Assignor nor any of its officers, directors,
employees, agents or attorneys shall be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of any Loan Document, including without limitation, documents granting the
Assignor and the other Lenders a security interest in assets of the Borrower or
any guarantor, (ii) any representation, warranty or statement made in or in
connection with any of the Loan Documents, (iii) the financial condition or
creditworthiness of the Borrower or any guarantor, (iv) the performance of or
compliance with any of the terms or provisions of any of the Loan Documents, (v)
inspecting any of the Property, books or records of the Borrower, its
Subsidiaries or Investment Affiliates, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee represents and
warrants that it has all right, power and authority to enter into this
Assignment Agreement. The Assignee further (i) confirms that it has received a
copy of the Credit Agreement and the other Loan Documents, together with copies
of the financial statements requested by the Assignee and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Arranger, the Assignor or
any other Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent 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, (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender,
(v) agrees that its payment instructions and notice instructions are as set
forth in the attachment to Schedule 1, (vi) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be "plan
assets" under ERISA, [AND (vii) ATTACHES THE FORMS PRESCRIBED BY THE INTERNAL
REVENUE SERVICE OF THE UNITED STATES CERTIFYING THAT THE ASSIGNEE IS ENTITLED TO
RECEIVE PAYMENTS UNDER THE LOAN DOCUMENTS WITHOUT DEDUCTION OR WITHHOLDING OF
ANY UNITED STATES FEDERAL INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right pursuant to SECTION 13.3.(a) of the Credit Agreement to
assign the rights which are
95
assigned to the Assignee hereunder to any entity or person, provided that (i)
any such subsequent assignment does not violate any of the terms and conditions
of the Loan Documents or any law, rule, regulation, order, writ, judgment,
injunction or decree and that any consent required under the terms of the Loan
Documents has been obtained and (ii) unless the prior written consent of the
Assignor is obtained, the Assignee is not thereby released from its obligations
to the Assignor hereunder, if any remain unsatisfied, including, without
limitation, its obligations under SECTIONS 4, 5 AND 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of SCHEDULE 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the
attached Notice of Assignment embody the entire agreement and understanding
between the parties hereto and supersede all prior agreements and understandings
between the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be
governed by the internal law, and not the law of conflicts, of
the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the purpose
hereof, the addresses of the parties hereto until notice of a change is
delivered) shall be the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
--------------------------------------------
Title:
--------------------------------------------
[NAME OF ASSIGNEE]
By:
--------------------------------------------
Title:
--------------------------------------------
96
SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: , 200
------------- --
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $
----------------
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** ____________%
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $
----------------
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement
-----------------
6. Proposed Effective Date:
-----------------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_______________________________ By:_________________________________________
Title:____________________________ Title:______________________________________
* If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
** Percentage taken to 10 decimal places
97
ATTACHMENT TO SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet,
which must include notice address and account information for
the Assignor and the Assignee
98
EXHIBIT "I" TO
ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
, 200
To: [NAME OF ADMINISTRATIVE AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Unsecured Revolving Credit Agreement (the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule
1"). Capitalized terms used herein and not otherwise defined herein shall have
the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Agent pursuant to SECTION 13.3.(a) of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of , 20__(the "Assignment"), pursuant to which, among other
things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement. From and after such purchase,
the Assignee's Commitment shall be the amount specified in Item 4 of Schedule 1
and the Assignor's Commitment shall be the amount specified in Item 5 of
Schedule 1. The Effective Date of the Assignment shall be the later of the date
specified in Item 5 of Schedule 1 or two (2) Business Days (or such shorter
period as agreed to by the Agent) after this Notice of Assignment and any fee
required by SECTION 13.3.(a) of the Credit Agreement have been delivered to the
Agent, provided that the Effective Date shall not occur if any condition
precedent agreed to by the Assignor and the Assignee or set forth in SECTION 13
of the Credit Agreement has not been satisfied.
4. The Assignor and the Assignee hereby give to the Agent notice of the
assignment and delegation referred to herein. The Assignor will confer with the
Agent before the date specified in Item 6 of Schedule 1 to determine if the
Assignment Agreement will become effective on such date pursuant to SECTION 3
hereof, and will confer with the Agent to determine the Effective Date pursuant
to SECTION 3 hereof if it occurs thereafter. The Assignor shall notify the Agent
if the Assignment Agreement does not become effective on any proposed Effective
Date as a result of the failure to satisfy the conditions precedent agreed to by
the Assignor and the Assignee. At the request of the Agent, the Assignor will
give the Agent written confirmation of the satisfaction of the conditions
precedent.
5. The Assignor or the Assignee shall pay to the Agent on
or before the Effective Date the processing fee of $3,500 required by SECTION
13.3.(a) of the Credit Agreement.
99
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that its
rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent under
the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
------------------------------- -----------------------------------------
Title: Title:
---------------------------- --------------------------------------
ACKNOWLEDGED AND CONSENTED TO
BY BANK ONE, NA,
as Agent
By:
---------------------------------
Title:
------------------------------
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
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EXHIBIT E
OPINION OF BORROWER'S COUNSEL
March 23, 2001
The Agent and the Lenders who are parties to
the Credit Agreement described below
Gentlemen/Ladies:
We are acting as special counsel to Great Lakes REIT, L.P., a Delaware
limited partnership (the "Borrower"), Great Lakes REIT, Inc., a Maryland real
estate investment trust (the "General Partner"), GLR No. 1, Inc., an Illinois
corporation, GLR No. 2, Inc., an Illinois corporation, and GLR No. 3, a Maryland
real estate investment trust and GLR-1600 Corporate Center, LLC, a Delaware
limited liability company, (collectively, the "Consolidated Group"), and have
represented the Consolidated Group in connection with the execution and delivery
of an Unsecured Revolving Credit Agreement dated as of March 23, 2001 (the
"Agreement") among the Borrower, Bank One, NA, and certain other banks, as
lenders, and Bank One, NA, as agent, providing for loans in an aggregate
principal amount from time to time not exceeding $200,000,000 at any one time
outstanding, and certain other agreements executed in connection therewith. All
capitalized terms used in this opinion and not otherwise defined shall have the
meanings attributed to them in the Agreement.
We have examined the Borrower's certificate of limited partnership,
limited partnership agreement and resolutions of the General Partner, articles
of incorporation, declaration of trust, limited partnership agreement or
by-laws, as the case may be, and resolutions of each Guarantor, the Agreement,
the Notes, the Guaranties, the Officer's Certificate of the Borrower attached
hereto as Exhibit A (the "Officer's Certificate") and such other certificates of
the Borrower and the Guarantors and public officials and matters of fact and law
as we deem necessary or appropriate to render this opinion.
Based on the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, we are of the opinion that:
1. The Borrower is a duly formed limited partnership, and each of
the Guarantors is duly formed as a corporation or real estate investment trust,
as the case may be; and the Borrower and the Guarantors are validly existing and
in good standing under the laws of their states of incorporation or formation,
and they each have all requisite authority and power to enter into, and perform
their respective obligations under, the Loan Documents. The Borrower is
qualified to conduct business in the States of Colorado, Illinois, Michigan,
Minnesota and Ohio. The General Partner is qualified to do business in the
States of Michigan and Ohio.
2. The execution and delivery of the Agreement and the Notes by
the Borrower and the performance by the Borrower of its obligations under the
Agreement and the Notes have
been duly authorized by all necessary corporate action and/or proceedings on the
part of the Borrower and will not:
(a) violate (i) any law, rule or regulation of the State
of Illinois or of the United States of America or (ii) the Borrower's
limited partnership certificate or limited partnership agreement or the
General Partner's declaration of trust or by-laws or (iii) any order,
writ, decree or judgment binding upon the Borrower or the General
Partner or their respective properties or assets; or
(b) result in a breach of or constitute a default under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien, charge or other
encumbrance on any property or asset of the Borrower or the General
Partner pursuant to, any indenture, note, mortgage, deed of trust,
security or pledge agreement, guarantee or loan or other agreement to
which the Borrower or the General Partner is a party or by which it or
any of its respective properties or assets is bound.
The opinion set forth in clauses (a)(iii) and (b) above is limited to
orders, writs, decrees and judgments and indentures, notes, mortgages, deeds of
trust, security or pledge agreements, guarantees or loan or other agreements
that have been identified to us in the Officer's Certificate, and we express no
opinion in clauses (a)(iii) and (b) with respect to any violation of any order,
writ, decree or judgment or indenture, mortgage, deed of trust, security or
pledge agreement, guarantee or loan or other agreement not so identified to us
or arising under or based upon any covenant of a financial or numerical nature
or requiring computation. We have no reason to believe that the information
certified in the Officer's Certificate is not correct.
3. The execution and delivery of the Guaranties by each Guarantor
and the performance by each Guarantor of its obligations under the Guaranties
have been duly authorized by all necessary corporate action and/or proceedings
on the part of each Guarantor and will not:
(a) violate (i) any law, rule or regulation of the State
of Illinois or of the United States of America or (ii) such Guarantor's
articles of incorporation or declaration of trust, as the case may be,
or by-laws or (iii) any order, writ, decree or judgment binding upon
the Guarantor or its respective properties or assets; or
(b) result in a breach of or constitute a default under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien, charge or other
encumbrance on any property or asset of such Guarantor pursuant to, any
indenture, note, mortgage, deed of trust, security or pledge agreement,
guarantee or loan or other agreement to which such Guarantor is a party
or by which it or any of its respective properties or assets is bound.
The opinion set forth in clauses (a)(iii) and (b) above is limited to
orders, writs, decrees and judgments and indentures, notes, mortgages, deeds of
trust, security or pledge agreements, guarantees or loan or other agreements
that have been identified to us in the Officer's Certificate, and we express no
opinion in clauses (a)(iii) and (b) with respect to any violation of any order,
writ, decree or judgment or indenture, mortgage, deed of trust, security or
pledge agreement, guarantee or loan or other agreement not so identified to us
or arising under or based upon any
102
covenant of a financial or numerical nature or requiring computation. We have no
reason to believe that the information certified in the Officer's Certificate is
not correct.
4. The Agreement and the Notes have been duly executed and
delivered by the Borrower and constitute legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, subject to
bankruptcy, reorganization, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in a
proceeding in equity or at law).
5. The Guaranties have been duly executed and delivered by each
Guarantor and constitutes legal, valid and binding obligation of such Guarantor
enforceable in accordance with their respective terms, subject to bankruptcy,
reorganization, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law).
6. No approval, authorization, consent or order of, or
registration or filing with, any governmental authority which has not been made
or obtained is required to be obtained or made by the Borrower or any Guarantor
in connection with the execution and delivery of the Notes, the Agreement or the
Guaranties.
7. The payment by the Borrower of all amounts required to be paid with
respect to the Notes in accordance with the terms of the Agreement will not
violate the provisions of any Illinois or federal law limiting or regulating the
payment of interest on obligations.
In rendering the foregoing opinion, we have assumed, but not
independently verified, (a) the genuineness of the signatures and the authority
of all persons signing documents in connection with the matters addressed by
this opinion on behalf of parties other than the Borrower and the Guarantors,
(b) the authenticity of all documents submitted to us as originals and (c) the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or photostatic copies.
We express no opinion as to (i) the enforceability of the Agreement,
the Notes or the Guaranty in the event the Lenders fail to act in good faith and
in a commercially reasonable manner or (ii) the enforceability of any provision
which purports to restrict access to courts or to legal or equitable remedies or
which relates to submission to jurisdiction or venue of courts, waives any
rights to notices, waives any remedies, defenses, trial by jury or other
benefits bestowed by operation of law or (iii) the due authorization of
borrowings by the Borrower or of guaranties by the Guarantors under the Loan
Documents in excess of $150,000,000.
We are admitted to the Bar of the State of Illinois and, except as set
forth below, we express no opinion regarding the laws of any other jurisdiction
other than the federal law of the United States of America. Insofar as our
opinion in paragraph 1 relates to matters of Maryland law, our opinion is given
in reliance upon an examination of Title 8 of the Maryland Corporations and
Associations Code Annotated (1995).
This opinion is delivered to you for your own use and benefit in
connection with the transactions contemplated by the Agreement and is not to be
relied upon by any other person (other than Participants and the Lenders'
permitted assignees) or for any other purpose. We
103
assume no obligation to supplement this opinion if any applicable laws change
after the date hereof or if we become aware of any facts that might change the
opinions expressed herein after the date hereof.
Very truly yours,
104
REAT LAKES REIT, L.P.
EXHIBIT A
OFFICER'S CERTIFICATE
In connection with the opinion of Ungaretti & Harris delivered pursuant
to the requirements of the Unsecured Revolving Credit Agreement dated as of
March 23, 2001 (the "Agreement"), among Great Lakes REIT, L.P. (the "Borrower"),
Bank One, NA, and certain other banks, as lenders, and Bank One, NA, as agent,
the undersigned, Richard L. Rasley, Executive Vice President of the general
partner of the Borrower, hereby certifies to Ungaretti & Harris as follows
(capitalized terms used herein and defined in the Agreement shall have such
defined meanings when used herein):
1. Attached as Schedule A hereto is a list of all indentures,
notes, mortgages, deeds of trust, security or pledge agreements, guarantees,
loan or other agreements to which the Borrower or any Guarantor is a party or
that are otherwise binding upon or applicable to the Borrower or any Guarantor
or any of their assets or properties and that would or could have the effect of
resulting in a breach of or constitute a default (or an event which with notice
or lapse of time or both would become default), or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of the Borrower
or any Guarantor.
2. A true and complete copy of each of the above
agreements, instruments and documents has heretofore been furnished to Ungaretti
& Harris.
3. None of the General Partner, the Borrower nor any
Subsidiary is subject to any order, writ, decree or judgment binding upon such
party.
4. No approval, authorization, consent or order of, or
registration or filing with, any governmental authority is required to be
obtained or made by the Borrower or any Guarantor in connection with the
execution and delivery of the Notes, the Agreement or the Guaranty.
IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of March,
2001.
--------------------------------------------
Name: Richard L. Rasley
Title: Executive Vice President
105
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
To: The Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Unsecured Revolving Credit Agreement, dated as of March 23, 2001 (as amended,
modified, renewed or extended from time to time, the "Agreement") among Great
Lakes REIT, L.P. ("Borrower"), Bank One, NA, individually and as Agent, and the
Lenders named therein. Unless otherwise defined herein, capitalized terms used
in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected Chief Financial Officer of the General
Partner of Borrower.
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of Consolidated Group and Investment Affiliates
during the accounting period covered by the financial statements attached (or
most recently delivered to the Agent if none are attached).
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Material Adverse Effect, Event of Default or Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Compliance Certificate, except as set forth below.
4. Schedule I (if attached) attached hereto sets forth financial
data and computations and other information evidencing the Borrower's compliance
with certain covenants of the Agreement, all of which data, computations and
information (or if no Schedule I is attached, the data, computations and
information contained in the most recent Schedule I attached to a prior
Compliance Certificate) are true, complete and correct in all material respects.
5. The financial statements, updates, reports and other materials
referred to in SECTION 8.2(i), 8.2(ii), 8.2(iv), or 8.2(ix), as the case may be,
of the Agreement which are delivered concurrently with the delivery of this
Compliance Certificate, and those most recently delivered pursuant to SECTION
8.2(vi), if any, fairly present in all material respects the consolidated
financial condition and operations of the Consolidated Group at such date and
the consolidated results of their operations for the period then-ended, in
accordance with GAAP applied consistently throughout such period and with prior
periods and, in the case of deliveries other than financial statements, the
matters set forth therein as of the dates and for the periods covered thereby;
provided, however, that any projections included therein constitute good faith
estimates of reasonably anticipated future matters which cannot be predicted
with certainty.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this _____ day of _______________, 200_.
----------------------------------------
_____________, a Qualified Officer of General Partner
107
SCHEDULE I
CALCULATION OF COVENANTS
108
EXHIBIT G
SCOPE OF WORK FOR ENVIRONMENTAL INVESTIGATIONS
ENVIRONMENTAL SITE ASSESSMENTS
BANK ONE, NA REPORTING STANDARDS
The following are Guidelines for the qualification of firms and for information
to be included in Environmental Site Assessments. These standards include the
minimum elements common to acceptable site assessments. Generally, it is
intended for the standards to be consistent with those outlined in the American
Society for Testing and Materials (ASTM) Designation: E 1527-00. This listing is
not intended to be a "how to" manual, as we rely on the environmental
professionals to expand the scope of their services and the information included
in the reports as required.
QUALIFICATIONS OF INVESTIGATING FIRM
The firm must have 5 years of experience in hazardous substances investigation.
Many of these firms began as geotechnical consultants, but expertise only in
soils analysis does not qualify them for hazardous substance analysis. The
person supervising and signing the report should be experienced in all matters
covered in the report. He should be a registered professional engineer or have
advanced degrees in related disciplines. The firm performing the work should be
of a professional nature WITH KNOWLEDGE OF LOCAL CONDITIONS.
DEPTH OF REPORTING REQUIRED
Phase I - Consists of site description, review of historical and
regulatory data and a physical inspection. If no potential contamination is
indicated, the report should so state, and a specific statement should be made
that no further investigation is required (see content requirements below).
Phase II - If a Phase I examination indicates the possibility of contamination,
the consultant should describe his suspicions, the areas to be tested, sampling
procedures to be used and methods used to assess the sample. He should then
specify and carry out a testing program for further evaluation.
Phase III - If Phase II reveals contamination at the site, the consultant will
design and implement a remediation program to remove the identified hazardous
materials. The report should include an estimated cost for the clean-up.
The initial Phase I site assessment report should include the following:
SITE DESCRIPTION
The site description section should include a detailed description of the site,
existing buildings and current site use. It should also include a general
description of the uses and conditions of adjacent properties which might result
in migrating contamination. It should include a summary of the visual
observations including, but not limited to, vegetation stress, debris, fill
materials,
ponding, evidence of underground storage tanks, evidence of previous
dumping or storage, discolored or stained soils, wetlands, groundwater flows,
and a description of regional geology and hydrology. On vacant sites, the
investigator should compare his observations to a USGS topographic map, noting
any changes in elevations or depressions which have been covered over, possibly
indicating past dumping or burial of wastes.
On sites with existing improvements the investigator should interview personnel
at the site regarding hazardous materials currently or previously used at the
site, underground storage tanks, pipeline right of ways and any other areas of
concern. Buildings should be checked for asbestos containing materials, PCB
equipment, etc.
HISTORICAL USES OF SITE, ADJACENT PROPERTIES, AND SIGNIFICANT NEARBY PROPERTY
The historical analysis should provide a chronology of past and present
significant uses of the subject site and adjacent sites, and highlight
activities which might have contributed unacceptable levels of contaminants. It
should contain an explanation of the methods of historical search which were
pursued, the information expected to be obtained and the information actually
obtained from each search. In general, the historical review should cover 30 -
40 years of history depending on the availability of information. Its purpose is
to investigate the possibility of prior hazardous substances releases at the
property, identify potential contingent liability from historic off-site
disposal of hazardous substances, or identify sources of contamination which
have or might in the future migrate to the site.
The historical analysis should include but not be limited to:
o Review of aerial photographs to identify past land uses and development
trends, and identify possible locations of ponds, landfills, tanks,
areas of soil discoloration or drum storage.
o Review county tax records or title search to identify past uses of
potential concern such as gas stations or industrial uses.
o Conversations with local environmental and health officials,
investigation of local, state and federal regulatory agencies files
including the EPA, DER and Corps of Engineers, and a check of EPA lists
of known contaminated sites, to check for recorded hazardous substances
handling, or potential permitting requirements of air emissions,
wastewater, RCRA or TSD permits.
Other information which may be attached to the report include, but should not be
limited to:
o A discussion of existing and proposed environmental standards and
legislation of the area
o Site Plan
o Ground level photos of the site with specific attention to any
characteristics noted in the report
o Area diagram showing the location of any matters mentioned in the
report and showing the site and adjacent properties if any potential
hazardous sources are identified on adjacent or nearby properties
o Copies of representative aerial photos
o Copies of correspondence with regulatory agencies
o Documents acquired during title search
o Chain of custody records
110
o Location map of site and immediate surroundings
o Listing of adjacent property owners and use of the properties
o Any other material available which describes or verifies information
given or conclusions drawn in the report.
Conclusions and Recommendations
The Consultant will prepare a complete written report which fully define the
scope of his responsibilities and objectives. It should describe the sources
used, the activities performed, the dates when activities were performed, the
results of research and recommendations. Specific recommendations for remedial
action, additional tests or investigations for each recognized area of concern
or condition and approximate costs of further investigation or remediation shall
be provided within the report.
The conclusion section must clearly state that the firm has exercised
professional judgement in reaching one of the following:
The Consultant, after performing the appropriate level of investigation, has
revealed no evidence of recognized environmental conditions in connection with
the subject property and no further testing or investigation is warranted; or
The Consultant, after performing the appropriate level of investigation, has
revealed no evidence of recognized environmental conditions in connection with
the subject property except for the following:
The report is to be signed by a professional engineer, environmental manager or
supervisor or any other individuals who provide significant professional
assistance in completing the assignment. The qualifications of the individuals
signing the report should be included.
111
SCHEDULE 1
SUBSIDIARY GUARANTORS
112
SCHEDULE 6.1
CREDIT PARTIES
State of
Principal
State of Place of
CREDIT PARTY ORGANIZATIONAL FORM ORGANIZATION BUSINESS OWNERSHIP
- ------------ ------------------- ------------ -------- ---------
Great Lakes REIT, LP limited partnership Delaware Illinois 99.9% of OP Units owned by
Great Lakes REIT publicly
held
Great Lakes REIT real est. investment Maryland Illinois Wholly-owned by Great Lakes
GLR No.1, Inc. trust corporation Illinois Illinois REIT
GLR No. 2, Inc. corporation Illinois Illinois Wholly-owned by Great Lakes
REIT
GLR No. 3 real est. investment trust Maryland Illinois Wholly-owned by Great Lakes
REIT
GLR -1600 Corporate limited liability company Delaware Illinois wholly-owned by Great Lakes
Center, LLC REIT, LP
OP Units are fractional, undivided interest in the partnership but do
not include Preferred Units. Preferred Units are interests that entitle the
holder to share in profits and losses on a limited basis but do not entitle the
holder to participate in the management of the partnership or to consent to or
approve any action that is not required by law.
SCHEDULE 6.9
LITIGATION
None.
SCHEDULE 6.19
ENVIRONMENTAL MATTERS
ARLINGTON RIDGE SERVICE CENTER, ARLINGTON HEIGHTS, ILLINOIS
A tenant, Honda Motor Company had a buried underground storage tank which was
removed under the supervision of Dames & Moore, Inc., a Rolling Meadows,
Illinois based environmental consulting firm. Following the completion of the
work the State of Illinois Environmental Protection Agency issued a letter dated
November 22, 1995 indicating that it had determined that all of the requirements
of Title EVI of the Act and 35 Illinois Administrative Code Part 732 had
apparently been satisfied and that no further action was necessary with respect
to this tank.
823 COMMERCE DRIVE, OAK BROOK, ILLINOIS:
Part of the rehabilitation of the hearing, ventilating, and air conditioning
system include the removal of approximately twenty-five asbestos fittings from
the cold water lines extending from the pumps to the children in the penthouse.
The work was performed by Luse Asbestos Removal Company, of Melrose Park,
Illinois and was performed in March 1996.
777 EAST EISENHOWER PARKWAY, ANN ARBOR, MICHIGAN:
A 2,000 gallon underground storage tank is located at the property which is used
for storage of diesel for an emergency generator. The property's UST is
registered with the State of Michigan and passed a tightness test on November 4,
1996.
OTHER MATTERS RELATED TO EQUITY PARTNERS, LTD.:
In 1988, JMG Lake Bluff Limited Partnership, acquired property located at 6750
South Sayre, Bedford Park, Illinois, which required remediation work to clean-up
a loading dock area. The areas had been contaminated by the spillage of un-used
motor oil prior to the date of acquisition. The remediation program and
installation of improvements were designed to prevent recurrence of the problem,
were funded by the property seller and the tenant, and were completed in 1989
under the supervision of O'Brien & Associates, Inc., and environmental
consulting firm retained by the mortgagee of the property. Equity Partners Ltd.
was the corporate general partner of this Partnership, and the Company merged
with the Equity Partners Ltd. in 1996.
COMPANY MAINTENANCE ACTIVITIES:
Regular cleaning and maintenance activities in the Company's properties require
handling and use of products that may contain "Contaminants," but the Company
has no knowledge after due inquire of any "handling" or "use" that would result
in a violation of an Environmental Law.
ONE PARK PLAZA, MILWAUKEE, WISCONSIN
A 550 gallon underground diesel fuel storage tank associated with a backup
generator is located on the property. The property is identified on the
Wisconsin Department of Commerce UST database. According to three separate phase
I site assessment reports, (the first prepared on behalf of Great Lakes REIT in
advance of its purchase of the property, the second at the time of
Great Lakes REIT's initial public offering, and the third on behalf of a secured
lender), a leak associated with the tank's piping occurred in 1992. Thereafter
approximately 6 cubic yards of soil were removed from the site and landfilled in
1994. Soil samples were then collected and analyzed, and no further contaminants
were detected. No further action was deemed necessary. The conclusion of each
Phase I report was that the site is in compliance with applicable federal, state
and local requirements.
116
SCHEDULE 6.24
TRADE NAMES
None.
SCHEDULE 6.25
INFORMATION REGARDING SUBSIDIARIES
(EXCLUDING CREDIT PARTIES) AND INVESTMENT AFFILIATES
There are no Subsidiaries that are Not Credit Parties and no Investment
Affiliates.
118
SCHEDULE 6.26
PROPERTIES
PROPERTY LOCATION PROPERTY TYPE
1900 East Golf Road * Schaumburg, IL Multi-story office
1750 East Golf Road * Schaumburg, IL Multi-story office
160-185 Hansen Court * Wood Dale, IL Single-story office/Office service
3455, 3550, 3555 Salt Creek Lane * Arlington Heights, IL Single-story office
601 Campus Drive Arlington Heights, IL Single-story office/Office service
1011 Touhy Avenue Des Plaines, IL Multi-story office
1660 Feehanville Drive * Mount Prospect, IL Multi-story office
175 Hawthorn Parkway Vernon Hills, IL Multi-story office
Two Marriott Drive Lincolnshire, IL Single-story office
3400 Dundee Road Northbrook, IL Multi-story office
823 Commerce Drive * Oak Brook, IL Multi-story office
3030 Warrenville Road * Lisle, IL Multi-story office
191 Waukegan Road * Northfield, IL Multi-story office
1920 & 1930 N. Thoreau Drive * Schaumburg, IL Single-story office
11270 W. Park Place Milwaukee, WI Multi-story office
11925 W. Lake Park Drive Milwaukee, WI Single-story office
2514 S. 102nd Street West Allis, WI Multi-story office
10150 W. National Avenue West Allis, WI Multi-story office
150,175, 250 Patrick Blvd. Brookfield, WI Single-story office/Office service
375 Bishop's way * Brookfield, WI Multi-story office
111 East Kilbourn Avenue Milwaukee, WI Multi-story office
N17 W24222 Riverwood Drive * Waukesha, WI Multi-story office
2550 University Avenue West * St. Paul, MN Multi-story office
2221 University Avenue SE Minneapolis, MN Multi-story office
777 East Eisenhower Parkway Ann Arbor, MI Multi-story office
32255 Northwestern Highway Farmington Hills, MI Multi-story office
1301 W. Long Lake Road Troy, MI Multi-story office
No. 40 OakHollow Southfield, MI Multi-story office
24800 Denso Drive Southfield, MI Multi-story office
305, 315 & 325 E. Eisenhower Pkwy * Ann Arbor, MI Multi-story office
PROPERTY LOCATION OWNED BY DATE ACQUIRED
1900 East Golf Road Great Lakes REIT, L.P. Dec-96
1750 East Golf Road Great Lakes REIT, L.P. Sep-97
160-185 Hansen Court Great Lakes REIT, L.P. Jan-94
3455, 3550, 3555 Salt Creek Lane Great Lakes REIT, L.P. Oct-97
601 Campus Drive Great Lakes REIT, L.P. May-93
1011 Touhy Avenue Great Lakes REIT, L.P. Dec-93
1660 Feehanville Drive Great Lakes REIT, L.P. Aug-95
175 Hawthorn Parkway Great Lakes REIT, L.P. Sep-94
Two Marriott Drive Great Lakes REIT, L.P. Jul-96
3400 Dundee Road Great Lakes REIT, L.P. Oct-93
823 Commerce Drive Great Lakes REIT, L.P. Nov-95
3030 Warrenville Road Great Lakes REIT, L.P. Sep-98
191 Waukegan Road Great Lakes REIT, L.P. Sep-98
1920 & 1930 N. Thoreau Drive Great Lakes REIT, L.P. Aug-00
11270 W. Park Place Great Lakes REIT, L.P. Sep-95
11925 W. Lake Park Drive Great Lakes REIT, L.P. Jun-93
2514 S. 102nd Street Great Lakes REIT, L.P. Nov-96
10150 W. National Avenue Great Lakes REIT, L.P. Nov-96
150,175, 250 Patrick Blvd. Great Lakes REIT, L.P. Jun-94
375 Bishop's way Great Lakes REIT, L.P. Apr-97
111 East Kilbourn Avenue GLR Milwaukee Center LLC Apr-98
(expected to be formed)
N17 W24222 Riverwood Drive Great Lakes REIT, L.P. Dec-99
2550 University Avenue West Great Lakes REIT, L.P. Dec-96
2221 University Avenue SE Great Lakes REIT, L.P. May-95
777 East Eisenhower Parkway GLR 777 Eisenhower LLC Dec-97
(expected to be formed)
32255 Northwestern Highway Great Lakes REIT, L.P. Dec-97
1301 W. Long Lake Road Great Lakes REIT, L.P. Nov-96
No. 40 OakHollow Great Lakes REIT, L.P. Dec-96
24800 Denso Drive Great Lakes REIT, L.P. Aug-95
305, 315 & 325 E. Eisenhower Pkwy Great Lakes REIT, L.P. May-99
*Denotes Unencumbered Asset
119
PROPERTY LOCATION PROPERTY TYPE
655 Melro Place South * Dublin, OH Multi-story office
4860-5000 Blazer Memorial Pkwy * Dublin, OH Single-story office/Office service
425 Metro Place North * Dublin, OH Multi-story office
175 South Third Street * Columbus, OH Multi-story office
30 Merchant Street * Springdale, OH Multi-story office
116 Inverness Drive East Englewood, C) Multi-story office
1600 Golf Road * Rolling Meadows, IL Multi-story office
PROPERTY LOCATION OWNED BY DATE ACQUIRED
655 Melro Place South Great Lakes REIT, L.P. Sep-97
4860-5000 Blazer Memorial Pkwy Great Lakes REIT, L.P. Sep-96
425 Metro Place North Great Lakes REIT, L.P. Sep-97
175 South Third Street Great Lakes REIT, L.P. Jan-98
30 Merchant Street Great Lakes REIT, L.P. Apr-96
116 Inverness Drive East Great Lakes REIT, L.P. May-98
1600 Golf Road GLR-1600 Corporate Center LLC Mar-01
*Denotes Unencumbered Asset
120
SCHEDULE 9.6
LIENS
INDEBTEDNESS INCURRED BY INDEBTEDNESS OWED TO PROPERTY ENCUMBERED
Great Lakes REIT, L.P. American Family Life Insurance Company 150, 175, 250 Patrick Blvd.
Brookfield, WI
Great Lakes REIT, L.P. USBank National Association 2221 University Avenue SE
Minneapolis, MN
Great Lakes REIT, L.P. Northwestern Mutual Life Insurance Company 116 Inverness Drive East
Englewood, CO
Great Lakes, REIT, L.P. Metropolitan Life Insurance Company 32255 Northwestern Highway
Farmington Hills, MI
Great Lakes REIT, L.P. AUSA Life Insurance Company, Inc. 601 Campus Drive
Arlington Heights, IL
1011 Touhy Avenue
Des Plaines, IL
175 Hawthorn Parkway
Vernon Hills, IL
Two Marriott Drive
Lincolnshire, IL
3400 Dundee Road
Northbrook, IL
11270 W. Park Place
Milwaukee, WI
11925 W. Lake Park Drive
Milwaukee, WI
2514 s. 102nd Street
West Allis, WI
10150 W. National Avenue
West Allis, WI
ORIGINAL AMOUNT OF MATURITY DATE
INDEBTEDNESS INCURRED BY INDEBTEDNESS
Great Lakes REIT, L.P. $ 3,500,00 10/13/2004
Great Lakes REIT, L.P. $5,676,576 06/01/2009
Great Lakes REIT, L.P. $12,500,000 12/01/2007
Great Lakes, REIT, L.P. $12,125,000 01/01/2003
Great Lakes REIT, L.P. $75,000,000 01/01/2009
121
INDEBTEDNESS INCURRED BY INDEBTEDNESS OWED TO PROPERTY ENCUMBERED
1301 W. Long Lake Road
Troy, MI
No. 40 OakHollow
Southfield, MI
24800 Denso Drive
Southfield, MI
ORIGINAL AMOUNT OF MATURITY DATE
INDEBTEDNESS INCURRED BY INDEBTEDNESS
122