EXHIBIT 10.10
CREDIT AGREEMENT
among
LIBERTY PROPERTY LIMITED PARTNERSHIP
and
LIBERTY PROPERTY TRUST
and
THE CO-BORROWERS PARTY HERETO
and
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT
and
WACHOVIA BANK, NATIONAL ASSOCIATION, AS CO-SYNDICATION AGENT
and
BANK ONE, N.A., AS CO-SYNDICATION AGENT
and
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS DOCUMENTATION AGENT
and
PNC BANK, NATIONAL ASSOCIATION, AS MANAGING AGENT
and
SUNTRUST BANK, AS CO-AGENT
and
THE LENDERS PARTY HERETO
FLEET SECURITIES, INC., LEAD ARRANGER
TABLE OF CONTENTS
ss.1. DEFINITIONS OF RULES OF INTERPRETATION...................................................................1
ss.1.1. Definitions...........................................................................................1
ss.1.2. Rules of Interpretation..............................................................................20
ss.2. REVOLVING CREDIT FACILITY...............................................................................21
ss.2.1. Commitment to Lend; Limitation on Total Commitment...................................................21
ss.2.2. Changes in Total Revolving Facility Commitment.......................................................21
ss.2.3. The Notes............................................................................................23
ss.2.4. Interest on Loans....................................................................................23
ss.2.5. Requests for Loans...................................................................................23
ss.2.6. Conversion Options...................................................................................24
ss.2.7. Funds for Loans......................................................................................25
ss.2.8 Swingline Loans......................................................................................26
ss.2.9. Letters of Credit....................................................................................27
ss.2.10. Competitive Bid Loans................................................................................30
ss.3. REPAYMENT OF THE LOANS..................................................................................33
ss.3.1. Maturity.............................................................................................33
ss.3.2. Mandatory Repayments of Loan.........................................................................34
ss.3.3. Optional Repayments of Loans.........................................................................34
ss.4. CERTAIN GENERAL PROVISIONS..............................................................................35
ss.4.1. Fees.................................................................................................35
ss.4.2. Facility Fee.........................................................................................35
ss.4.3. Funds for Payments...................................................................................35
ss.4.4. Computations.........................................................................................36
ss.4.5. Additional Costs, Etc................................................................................36
ss.4.6. Capital Adequacy.....................................................................................37
ss.4.7. Certificate..........................................................................................37
ss.4.8. Indemnity............................................................................................38
ss.4.9. Default Interest and Late Charges....................................................................38
ss.4.11. Inability to Determine Eurodollar Rate...............................................................38
ss.4.11. Illegality...........................................................................................38
ss.4.12. Replacement of Lenders...............................................................................39
ss.5. UNENCUMBERED PROPERTIES; NO LIMITATION ON RECOURSE......................................................40
ss.5.1. Unencumbered Properties and Unencumbered Development Properties......................................40
ss.5.2. Waivers by Requisite Lenders.........................................................................40
ss.5.3. Rejection of Unencumbered Properties.................................................................40
ss.5.4. Change in Circumstances..............................................................................40
ss.5.5. No Limitation on Recourse............................................................................41
ss.5.6. Additional Co-Borrowers..............................................................................41
ss.6. REPRESENTATIONS AND WARRANTIES..........................................................................41
ss.6.1. Authority; Etc.......................................................................................41
ss.6.2. Governmental Approvals...............................................................................42
ss.6.4. Financial Statements.................................................................................43
ss.6.5. No Material Changes, Etc.............................................................................43
ss.6.6. Franchises, Patents, Copyrights, Etc.................................................................44
ss.6.7. Litigation...........................................................................................44
ss.6.8. No Materially Adverse Contracts, Etc.................................................................44
ss.6.9. Compliance With Other Instruments, Laws, Etc.........................................................44
ss.6.10. Tax Status...........................................................................................44
ss.6.11. Event of Default.....................................................................................44
ss.6.12. Investment Company Act...............................................................................45
ss.6.13. Absence of Financing Statements, Etc.................................................................45
ss.6.14. Status of the Company................................................................................45
ss.6.15. Certain Transactions.................................................................................45
ss.6.16. Benefit Plans: Multiemployer Plans: Guaranteed Pension Plans.........................................45
ss.6.17. Regulations U and X..................................................................................45
ss.6.18. Environmental Compliance.............................................................................45
ss.6.19. Subsidiaries and Affiliates..........................................................................47
ss.6.20. Loan Documents.......................................................................................47
ss.6.21. Buildings on the Unencumbered Properties.............................................................47
ss.7. AFFIRMATIVE COVENANTS OF THE BORROWER...................................................................47
ss.7.1. Punctual Payment.....................................................................................48
ss.7.2. Maintenance of Office................................................................................48
ss.7.3. Records and Accounts.................................................................................48
ss.7.4. Financial Statements, Certificates and Information...................................................48
ss.7.5. Notices..............................................................................................49
ss.7.6. Existence; Maintenance of REIT Status; Maintenance of Properties.....................................51
ss.7.7. Insurance............................................................................................51
ss.7.8. Taxes................................................................................................51
ss.7.9. Inspection of Properties and Books...................................................................51
ss.7.10 Compliance with Laws, Contracts, Licenses, and Permits...............................................52
ss.7.11. Use of Proceeds......................................................................................52
ss.7.12. Prepayment of Existing Fleet Facility................................................................52
ss.7.13 Notices of Significant Transactions..................................................................52
ss.7.14. Further Assurance....................................................................................53
ss.7.15. Environmental Indemnification........................................................................53
ss.7.16. Response Actions.....................................................................................53
ss.7.17. Employee Benefit Plans...............................................................................53
ss.7.18 Required Interest Rate Contracts.....................................................................54
ss.8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER..............................................................54
ss.8.1 Restrictions on Recourse Indebtedness................................................................54
ss.8.2. Restrictions on Investments..........................................................................55
ss.8.3. Merger, Consolidation and Other Fundamental Changes..................................................56
ss.8.4. Sale and Leaseback...................................................................................57
ss.8.5. Compliance with Environmental Laws...................................................................57
ss.8.6. Distributions........................................................................................57
ss.8.7. Equity Repurchase Payments............................................................................57
ss.8.8. Preferred Distributions..............................................................................57
ss.9. FINANCIAL COVENANTS OF THE BORROWER.....................................................................57
ss.9.1. Value of All Unencumbered Properties.................................................................57
ss.9.2. Minimum Debt Service Coverage........................................................................58
ss.9.3. Total Debt to Total Assets...........................................................................58
ss.9.4. Maximum Secured Debt.................................................................................58
................................................................................................................58
ss.9.5. Minimum Tangible Net Worth...........................................................................58
ss.9.6. Total Operating Cash Flow to Interest Expense........................................................58
ss.9.7. Adjusted EBITDA to Fixed Charges.....................................................................58
ss.9.8. Aggregate Occupancy Rate.............................................................................58
ss.10. CONDITIONS TO EFFECTIVENESS.............................................................................58
ss.10.1. Loan Documents....................................................................................58
ss.10.2. Certified Copies of Organization Documents; Good Standing Certificates............................58
ss.10.3. By-laws; Resolutions..............................................................................59
ss.10.4. Incumbency Certificate; Authorized Signers........................................................59
ss.10.5. Opinions of Counsel Concerning Organization and Loan Documents....................................59
ss.10.6. Payment of Fees...................................................................................59
ss.10.7. Effectiveness of Multi-Currency Credit Agreement..................................................59
ss.11. CONDITIONS TO ALL CREDIT ADVANCES.......................................................................59
ss.11.1. Representations True; No Event of Default; Compliance Certificate.................................59
ss.11.2. No Legal Impediment...............................................................................60
ss.11.3. Governmental Regulation...........................................................................60
ss.11.4. Proceedings and Documents.........................................................................60
ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC....................................................................60
ss.12.1. Events of Default and Acceleration................................................................60
ss.12.2. Termination of Commitments........................................................................62
ss.12.3. Remedies..........................................................................................63
ss.12.4. Distribution of Enforcement Proceeds..............................................................63
ss.13. SETOFF..................................................................................................64
ss.14. THE AGENT...............................................................................................65
ss.14.1. Authorization.....................................................................................65
ss.14.2. Employees and Agents..............................................................................65
ss.14.3. No Liability......................................................................................65
ss.14.4. No Representations................................................................................65
ss.14.5. Payments..........................................................................................65
ss.14.6. Holders of Notes..................................................................................67
ss.14.7. Indemnity.........................................................................................67
ss.14.8. Agent as Lender...................................................................................67
ss.14.9. Resignation.......................................................................................67
ss.14.10. Notification of Defaults and Events of Default.......................................................68
ss.14.11. Duties in the Case of Enforcement....................................................................68
ss.15. EXPENSES................................................................................................68
ss.16. INDEMNIFICATION.........................................................................................69
ss.17. SURVIVAL OF COVENANTS, ETC..............................................................................70
ss.18. ASSIGNMENT; PARTICIPATIONS; ETC.........................................................................70
ss.18.1. Conditions to Assignment by Lenders...............................................................70
ss.18.2. Certain Representations and Warranties; Limitations; Covenants....................................71
ss.18.3 Register..........................................................................................71
ss.18.4. New Notes.........................................................................................72
ss.18.5. Participations....................................................................................72
ss.18.6. Pledge by Lender..................................................................................73
ss.18.7. No Assignment by Borrower.........................................................................73
ss.18.8. Disclosure........................................................................................73
ss.19. NOTICES, ETC............................................................................................73
ss.20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE......................................................74
ss.21. HEADINGS................................................................................................74
ss.22. COUNTERPARTS............................................................................................74
ss.23. ENTIRE AGREEMENT........................................................................................74
ss.24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS..........................................................74
ss.25. CONSENTS, AMENDMENTS, WAIVERS, ETC......................................................................75
ss.26. SEVERABILITY............................................................................................75
ss.27. ACKNOWLEDGMENTS.........................................................................................75
ss.28. CO-BORROWER PROVISIONS..................................................................................76
ss.28.1. Joint Benefit.....................................................................................76
ss.28.2. Duty to Keep Informed.............................................................................76
ss.28.3. Consents..........................................................................................77
ss.28.4. Suretyship Waivers................................................................................77
ss.28.5. Subordination.....................................................................................79
Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Swingline Loan Request
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Letter of Credit Request
Exhibit G Form of Letter of Credit Application
Exhibit H Form of Competitive Bid Quote Request
Exhibit I Form of Invitation for Competitive Bid Quotes
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Acceptance of Competitive Bid Quote
Exhibit L Form of Joinder Agreement
Schedule 1 Lenders; Domestic and LIBOR Lending Offices
Schedule 1.1 Unencumbered Properties and Unencumbered Development Properties
Schedule 1.2 Commitments and Commitment Percentages
Schedule 1.3 Related Companies, Co-Borrowers and Unconsolidated Entities
Schedule 1.4. Existing Letter of Credit
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.15 Insider Transactions
Schedule 6.16 Employee Benefit Plans
Schedule 6.18 Environmental Matters
Schedule 6.19 Company Assets
Schedule 6.21 Building Structural Defects, etc.
Schedule 7.18 Interest Rate Contracts
Schedule 8.2(d) Investments
CREDIT AGREEMENT
This CREDIT AGREEMENT is made as of the 16th day of January, 2003, by
and among LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership (the "Borrower"), LIBERTY PROPERTY TRUST, a Maryland trust (the
"Company"), the Co-Borrowers named on the signature pages hereof and any entity
that may become an additional Co-Borrower pursuant to ss.5.6 (the
"Co-Borrowers") and FLEET NATIONAL BANK, a national banking association
("Fleet"), the other lending institutions which are listed from time to time on
Schedule 1 (collectively, with Fleet, the "Lenders"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as co-syndication agent, BANK ONE, N.A., as co-syndication agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION, as documentation agent, PNC BANK,
NATIONAL ASSOCIATION, as managing agent, SUNTRUST BANK as co-agent, and FLEET
NATIONAL BANK, as administrative agent for itself and such other lending
institutions (the "Agent").
WHEREAS, the Borrower has requested that Fleet and the Lenders provide
an unsecured revolving credit facility in the initial maximum amount of
$300,000,000 (the "Facility") to the Borrower and the Co-Borrowers and Fleet and
the Lenders have agreed to provide such Facility subject to the terms and
conditions set forth herein;
WHEREAS, the Borrower has requested that Fleet and certain of the
Lenders provide an unsecured multi-currency revolving credit facility in the
maximum amount of $50,000,000 (the "Multi-Currency Facility") to the Borrower
and Fleet and certain of the Lenders have agreed to provide such Facility
subject to the terms and conditions set forth in a Multi-Currency Credit
Agreement of even date herewith among the Borrower, the Co-Borrowers, the Agent
and certain of the Lenders or their Affiliated Lenders (the "Multi-Currency
Credit Agreement");
NOW, THEREFORE, to accomplish these purposes, the Agent, the Borrower,
the Company and the Lenders hereby agree as follows:
ss.1. DEFINITIONS OF RULES OF INTERPRETATION
ss.1.1. Definitions. The following terms shall have the meanings set
forth in this ss.l or elsewhere in the provisions of this Agreement referred to
below:
Additional Commitment. The portion (if any) of any Lender's Commitment
which will become effective on the Commitment Increase Date if the Total
Commitment is increased pursuant to ss.2.2.
Additional Commitment Lenders. Those Lenders which provide an
Additional Commitment.
Adjusted EBITDA. EBITDA adjusted to remove the effect of recognizing
rental income on a straight-line basis over the applicable lease terms.
1
Affiliated Lenders. Any commercial bank or financial institution which
is (i) the parent corporation of any of the Lenders, (ii) a wholly-owned
subsidiary of any of the Lenders or (iii) a wholly-owned subsidiary of the
parent corporation of any of the Lenders.
Agent. Fleet National Bank acting in its capacity as administrative
agent for the Lenders or any successor agent.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time.
Aggregate Occupancy Rate. With respect to the Unencumbered Properties
at any time, the ratio, as of such date, expressed as a percentage, of (i) the
net leasable area of all Unencumbered Properties leased to tenants paying rent
pursuant to Leases other than Leases which are in material default, to (ii) the
aggregate net leasable area of all Unencumbered Properties.
Agreement. This Credit Agreement, including the Schedules and Exhibits
hereto.
Applicable Facility Fee. As of any date of determination, a fee at the
annual rate determined pursuant to the following table:
---------------------------------------------------------------------
S&P Rating Moody's Rating Fitch Rating Facility Fee
---------------------------------------------------------------------
Below BBB- or Below Baa3 or Below BBB- or
unrated unrated unrated 0.30%
BBB- Baa3 BBB- 0.20%
BBB Baa2 BBB 0.20%
BBB+ Baa1 BBB+ 0.15%
A- or higher A3 or higher A- or higher 0.15%
---------------------------------------------------------------------
In the event that the three Ratings are not equivalent, the Applicable Facility
Fee will be based on the lower of the two highest ratings. Any change in the
Applicable Facility Fee caused by a change in the Moody's Rating, the S&P Rating
or the Fitch Rating shall become effective on the first day following the
effective date of such change.
2
Applicable LIBOR Margin. As of any date of determination, the annual
rate determined pursuant to the following table:
----------------------------------------------------------------------
S&P Rating Moody's Rating Fitch Rating LIBOR Margin
----------------------------------------------------------------------
Below BBB- or Below Baa3 or Below BBB- or
unrated unrated unrated 1.20%
BBB- Baa3 BBB- 0.95%
BBB Baa2 BBB 0.70%
BBB+ Baa1 BBB+ 0.65%
A- or higher A3 or higher A- or higher 0.60%
----------------------------------------------------------------------
In the event that the three Ratings are not equivalent, the Applicable LIBOR
Margin will be based on the lower of the two highest ratings. Any change in the
Applicable LIBOR Margin caused by a change in the Moody's Rating, the S&P Rating
or the Fitch Rating shall become effective on the first day following the
effective date of such change.
Arranger. Fleet Securities, Inc. or any successor.
Assignment and Acceptance. Seess.18.
Balance Sheet Date. December 31, 2001.
Borrower. As defined in the preamble hereto.
Borrowing Date. The date on which any Loan is made or is to be made
(including, without limitation, the date on which any Mandatory Prime Rate Loan
is made), and the date on which any Loan is converted or continued in accordance
with ss.2.6.
Buildings. The buildings, structures and other improvements now or
hereafter located on the Unencumbered Properties.
Business Day. Any day other than a Saturday, Sunday or day which shall
be in the Commonwealth of Massachusetts a legal holiday or day on which banking
institutions are required or authorized to close and, in the case of LIBOR
Loans, also a day which is a LIBOR Business Day.
Capitalized Leases. Leases under which the Borrower is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the Borrower in accordance
with Generally Accepted Accounting Principles.
CERCLA. See ss.6.18.
Co-Borrowers. The partnerships and corporations designated as
Co-Borrowers on Schedule 1.3 hereto and any other Related Companies which are at
least 85% owned by Borrower and which becomes a Co-Borrower pursuant to ss.5.6.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
3
Commitment. With respect to each Lender, the amount set forth from time
to time on Schedule 1.2 hereto as the amount of such Lender's commitment to make
Loans hereunder to the Borrower, as adjusted from time to time as a result of
any assignments pursuant to ss.18. The Commitment of the Lender which is also
the Swingline Lender shall not be reduced by the amount of its Swingline
Commitment.
Commitment Percentage. With respect to each Lender, the percentage set
forth from time to time on Schedule 1.2 hereto as such Lender's percentage of
the Total Commitment. If Borrower exercises its option to increase the Total
Commitment pursuant to ss.2.2(a), the Commitment Percentages of the Lenders will
change effective upon the Commitment Increase Date.
Commitment Increase. An increase in the Total Commitment to not more
than $400,000,000 pursuant to ss.2.2(a).
Commitment Increase Date. See ss.2.2(a).
Company. See preamble.
Competitive Bid Loans. Loans made by one or more Lenders pursuant to
ss.2.10
Competitive Bid Loan Account. See ss.2.10(a).
Competitive Bid Quote Request. See ss.2.10(c).
Competitive Bid Quote. An offer to make a Competitive Bid Loan made by
a Lender in response to a Competitive Bid Quote Request.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with ss.2.6.
Credit Exposure. With respect to each Lender as of any date of
determination, the sum, without duplication, of the following: (i) the
outstanding principal amount of all Loans advanced by such Lender under ss.2.1,
(ii) the outstanding principal amount of all Mandatory Prime Rate Loans advanced
by such Lender pursuant to ss.2.8 (b) or ss.2.9 (d), (iii) the outstanding
principal amount of all participations purchased by such Lender pursuant to
ss.2.8 (c) or ss.2.9 (d), (iv) the outstanding principal amount of all
Competitive Bid Loans advanced by such Lender pursuant to ss.2.10 (k), (v) such
Lender's Commitment Percentage of all outstanding Swingline Loans, except any
Swingline Loan in which a participation has been purchased therein by such
Lender pursuant to ss.2.8 (c) and (vi) such Lender's Commitment Percentage of
the stated amount of each Letter of Credit issued under ss.2.9 which has not
expired or terminated prior to the date of determination.
Default. See ss.12.1.
Delinquent Lender. See ss.14.5(c).
Designated Co-Borrower. See ss.2.5(c).
4
Distribution. The declaration or payment of any dividend or
distribution of cash or cash equivalents to the holders of common shares of
beneficial interest in the Company or the holders of common units of limited
partnership interest in the Borrower, or any distribution to any officer,
employee or director of the Borrower or the Company, other than employee
compensation consistent with past practices.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Lender
designated as such in Schedule 1 hereto; thereafter, such other office of such
Lender, if any, located within the United States that will be making or
maintaining Prime Rate Loans.
Drawing Date: The date on which a draft under a Letter of Credit is
paid by the Agent.
EBITDA. The Borrower's net income or loss, excluding gains or losses
from sales of property, extraordinary items and minority interests, plus (to the
extent deducted in determining net income or loss) interest expense,
depreciation and amortization, all as defined and computed in accordance with
Generally Accepted Accounting Principles.
Effective Date. The date upon which this Agreement shall become
effective pursuant to ss.10. Unless the Agent notifies the Borrower and the
Lenders that some other date is the Effective Date, the Effective Date shall be
the date set forth on the first page of this Agreement.
Eligible Assignee. Any of (a) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with Generally Accepted Accounting
Principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), and having total assets in excess of $1,000,000,000, provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD; (d) the
central bank of any country which is a member of the OECD; (e) any other
assignee having a net worth of at least $100,000,000 that, in the reasonable
judgment of the Agent, is a reputable institutional investor with substantial
experience in lending and originating loans similar to the Facility, or in
purchasing, investing in or otherwise holding such loans; and (f) any Lender
Affiliate or a Related Fund of a Lender. For purposes hereof, "Lender Affiliate"
shall mean, (A) with respect to any Person that would otherwise be an Eligible
Assignee under clauses (a) - (e) above (a "Qualified Assignee"), (i) an
affiliate of such Qualified Assignee or (ii) any Person that is engaged in
making, purchasing, holding or otherwise investing in bank loans or similar
extensions of credit in the ordinary course of its business and is administered
(including as placement agent therefore) or managed by a Qualified Assignee or
an affiliate of a Qualified Assignee and (B) with respect to a Lender that is a
fund which invests in bank loans or similar extensions of credit, any Related
Fund of such Lender. Further, for purposes hereof a "Related Fund" shall mean,
with respect to a Lender which is a fund which invests in bank loans or similar
extensions of credit, any other such fund managed by the same investment advisor
as such Lender or by an affiliate of such Lender or such advisor.
Notwithstanding anything to the contrary, the term Eligible Assignee shall
exclude any Person controlling, controlled by or under common control with, the
Borrower or the Company.
5
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3 (3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See ss.6.18(a).
Equity Repurchase Payments. All payments of cash or cash equivalents by
Borrower or the Company as consideration for the repurchase, redemption or
retirement of any common shares of beneficial interest in the Company, or any
common units of limited partnership interest in Borrower.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate
Loan, the maximum rate (expressed as a decimal) at which any of the Lenders
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Event of Default. See ss.12.1.
Facility. The unsecured revolving line of credit facility provided to
the Borrower pursuant to this Agreement.
Fitch Rating. The rating for Borrower's senior long-term unsecured debt
assigned by Fitch Ratings or its successors.
Fixed Charges. With respect to any fiscal period of the Borrower, an
amount equal to the sum of (i) Interest Expense, (ii) regularly scheduled
installments of principal payable with respect to all Indebtedness of Borrower,
(iii) current maturities on Recourse Indebtedness not refinanced with Loans
hereunder or other replacement Indebtedness or otherwise repaid plus (iv) all
dividend payments due to the holders of any preferred shares of beneficial
interest of the Company and all distributions due to the holders of any limited
partnership interests in the Borrower other than limited partner distributions
based on the per share dividend paid on the common shares of beneficial interest
of the Company.
6
Funds From Operations. With respect to any fiscal period of the
Borrower, an amount equal to the Borrower's net income (computed in accordance
with Generally Accepted Accounting Principles), excluding gains (or losses) from
sales of property, plus depreciation and amortization, and after adjustments for
Unconsolidated Entities. Adjustments for Unconsolidated Entities will be
calculated to reflect funds from operations on the same basis.
Generally Accepted Accounting Principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Borrower
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in Generally Accepted Accounting Principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guaranty. The Unconditional Guaranty of Payment and Performance from
the Company to the Agent pursuant to which the Company has guaranteed the
Obligations.
Hazardous Substances. See ss.6.18(b).
Indebtedness. All obligations, contingent and otherwise, of the
following types: (a) the Obligations, (b) all debt and similar monetary
obligations for borrowed money, whether direct or indirect; (c) all liabilities
secured by any mortgage, pledge, negative pledge, security interest, lien,
negative lien, charge, or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; (d) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness or obligations
of others (including, without limitation, the indebtedness or obligations of
Unconsolidated Entities), including any obligation to supply funds to or in any
manner to invest in, directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer in respect of any letters of credit;
and (e) such obligor's liabilities, contingent or otherwise of the type set
forth in (a) through (d) above, under any joint venture, limited liability
company or partnership agreement.
Interest Expense. With respect to any fiscal period of the Borrower, an
amount equal to the sum of the following with respect to all Indebtedness of the
Borrower and the Related Companies: (i) total interest expense, accrued in
accordance with Generally Accepted Accounting Principles plus (ii) all
capitalized interest determined in accordance with Generally Accepted Accounting
Principles, plus (iii) the amortization of deferred financing costs.
7
Interest Payment Date. As to any Prime Rate Loan (including any
Swingline Loan) or LIBOR Rate Loan (other than a Competitive Bid Loan), the
first day of each calendar month. As to any Competitive Bid Loan, as provided in
ss.2.10 (l).
Interest Period. With respect to each Loan, (a) initially, the period
commencing on the Borrowing Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request
(except that no Loan Request is required for Mandatory Prime Rate Loans and
except that Borrower shall have no options with respect to selecting Interest
Periods for Swingline Loans) (i) for any Prime Rate Loan, the day on which such
Prime Rate Loan is paid in full or converted to a LIBOR Rate Loan; and (ii) for
any LIBOR Rate Loan, 1, 2, 3 or 6 months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall be extended to the next succeeding LIBOR Business Day;
(B) if any Interest Period with respect to a Prime Rate Loan
would end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in
ss.2.6, the Borrower shall be deemed to have requested a conversion of the
affected LIBOR Rate Loan to a Prime Rate Loan on the last day of the then
current Interest Period with respect thereto;
(D) any Interest Period relating to any LIBOR Rate Loan that
begins on the last LIBOR Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last LIBOR Business Day of a calendar
month; and
(E) the Borrower may not select any Interest Period relating
to any LIBOR Rate Loan that would extend beyond the Maturity Date.
Interest Rate Contracts. Interest rate swap, cap or similar agreements
providing for interest rate protection.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock, partnership or
membership interests or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of any guaranties (or
other commitments as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of Investments outstanding at any
8
particular time: (a) the amount of any Investment represented by a guaranty or
secured by a letter of credit shall be taken at not less than the principal
amount of the obligations guaranteed or secured by such letter of credit and
still outstanding; (b) there shall be included as an Investment all interest
accrued with respect to Indebtedness constituting an Investment unless and until
such interest is paid; (c) there shall be deducted in respect of each such
Investment any amount received as a return of capital; (d) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (b) may be deducted when
paid; and (e) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Leases. Leases, licenses and agreements whether written or oral,
relating to the use or occupation of space in the Buildings on the Unencumbered
Properties and the Unencumbered Development Properties by persons other than the
owner thereof or any of its affiliates.
Lenders. Fleet and the other lending institutions listed from time to
time on Schedule 1 hereto and any other Person who becomes an assignee of any
rights of a Lender pursuant to ss.18 or a Person who acquires all or
substantially all of the stock or assets of a Lender.
Letter of Credit. A letter of credit issued by the Agent for the
account of the Borrower pursuant to ss.2.9 and the letters of credit issued
prior to the Effective Date and described on Schedule 1.4.
Letter of Credit Request. See ss.2.9.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London,
England.
LIBOR Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Prepayment Fee. See ss.3.3.
LIBOR Rate. As applicable to any LIBOR Rate Loan, the rate per annum as
determined on the basis of the offered rates for deposits in U.S. Dollars, for a
period of time comparable to the Interest Period applicable to such LIBOR Rate
Loan which appears on the Telerate Page 3750 as of 11:00 a.m. London time on the
day that is two LIBOR Business Days preceding the first day of such LIBOR Rate
Loan; provided, however, if the rate described above does not appear on the
Telerate System on any applicable interest determination date, the LIBOR Rate
rate shall be the rate (rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point), determined on the basis of the
offered rates for deposits in U.S. dollars for a period of time comparable to
the Interest Period applicable to such LIBOR Rate Loan which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) LIBOR Business Days preceding the first day of
such LIBOR Rate Loan as selected by the Agent. The principal London office of
9
each of the four major London banks will be requested to provide a quotation of
its U.S. Dollar deposit offered rate. If at least two such quotations are
provided, the rate for that date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate for that date
will be determined on the basis of the rates quoted for loans in U.S. dollars to
leading European banks for a period of time comparable to the Interest Period
applicable to such LIBOR Rate Loan offered by major banks in New York City at
approximately 11:00 a.m. New York City time, on the day that is two Business
Days preceding the first day of such Interest Period applicable to such LIBOR
Rate Loan. In the event that the Agent is unable to obtain any such quotation as
provided above, it will be deemed that LIBOR Rate pursuant to a LIBOR Rate Loan
cannot be determined and ss.4.10 shall be applicable. In the event that the
Board of Governors of the Federal Reserve System shall impose a Eurocurrency
Reserve with respect to LIBOR Rate deposits of Bank, then for any period during
which such Eurocurrency Reserve shall apply, LIBOR Rate shall be equal to the
amount determined above divided by an amount equal to 1 minus the Eurocurrency
Reserve Rate.
LIBOR Rate Loans. Loans bearing interest calculated by reference to the
LIBOR Rate.
Lien. Any lien, encumbrance, mortgage, deed of trust, pledge,
restriction or other security interest. If title to any Real Estate Asset is
held by a Subsidiary of Borrower or an Unconsolidated Entity then any pledge or
assignment of Borrower's stock, partnership interest, limited liability company
interest or other ownership interest in such Subsidiary or Unconsolidated Entity
shall be deemed to be a Lien on the Real Estate Assets owned by such Subsidiary
or Unconsolidated Entity.
Loan Documents. This Agreement, the Notes, the Guaranty and any and all
other agreements, documents and instruments now or hereafter evidencing,
securing or otherwise relating to the Loans.
Loan Request. See ss.2.5.
Loans. All Loans made or to be made by one or more of the Lenders to
the Borrower hereunder, including Loans pursuant to ss.2.1 and ss. 2.5,
Swingline Loans made by Swingline Lender pursuant to ss. 2.8, Mandatory Prime
Rate Loans made pursuant to ss.2.8 or ss.2.9, and Competitive Bid Loans made
pursuant to ss.2.10.
Mandatory Prime Rate Loans. Loans made by the Lenders (without a Loan
Request) under the circumstances described in ss.2.8(b) or ss.2.9(d).
Material Adverse Effect means a material adverse effect on (i) the
business, Unencumbered Properties, Unencumbered Development Properties, results
of operations or financial condition of the Borrower and the Related Companies
taken as a whole or (ii) the ability of the Borrower, any Co-Borrower or the
Company to perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents or the remedies or
material rights of the Agent or the Lenders thereunder.
10
Maturity Date. January 16, 2006 (or, if Borrower shall exercise its
option to extend such Maturity Date in accordance with ss.3.1, January 16,
2007), or such earlier date on which the Loans shall become due and payable
pursuant to the terms hereof.
Maximum Credit Amount. The least of the following: (i) the maximum
amount of Outstanding Obligations without causing a violation of Section 9.1;
(ii) the maximum amount of Outstanding Obligations without causing a violation
of Section 9.2; and (iii) the Total Commitment.
Moody's Rating. The rating for Borrower's senior long-term unsecured
debt assigned by Moody's Investors Services, Inc. or its successors.
Multi-Currency Facility. The revolving credit facility in the maximum
principal amount of $50,000,000 available in Euro, Pounds Sterling and Dollars
pursuant to the Multi-Currency Facility Agreement.
Multi-Currency Credit Agreement. The Multi-Currency Credit Agreement of
even date herewith among the Borrower, the Agent and certain of the Lenders or
their Affiliated Lenders relating to the Multi-Currency Facility.
Multi-Currency Loans. Loans outstanding under Multi-Currency Facility
Agreement.
Multiemployer Plan. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Offering Proceeds. All cash proceeds received after the Effective
Date by the Borrower or the Company as a result of the sale of common, preferred
or other classes of stock of the Company or the issuance of limited partnership
interests in the Borrower less customary costs and discounts of issuance paid by
Company or Borrower in connection therewith.
Net Operating Income. With respect to any fiscal period of the Borrower
and with respect to any one or more of the Real Estate Assets, the total rental
and other operating income from the operation of such Real Estate Assets after
deducting all expenses and other proper charges incurred by the Borrower in
connection with the operation of such Real Estate Assets during such fiscal
period, including, without limitation, property operating expenses, real estate
taxes and bad debt expenses, but before payment or provision for Fixed Charges,
income taxes, and depreciation, amortization, and other non-cash expenses, all
as determined in accordance with Generally Accepted Accounting Principles. In
the case of Real Estate Assets owned by Related Companies which are not
wholly-owned by Borrower, Net Operating Income shall be reduced by the amount of
cash flow of such Related Company allocated for distribution to the minority
owners of such Related Company. With respect to Real Estate Assets located
outside of the United States, Net Operating Income shall be converted from the
currency in which the applicable income and expenses are paid to Dollars using
the currency exchange rates in effect as of the end of the applicable fiscal
period.
Notes. See ss.2.3.
11
Obligations. All indebtedness, obligations and liabilities of the
Borrower, any Co-Borrower or the Company to any of the Lenders and the Agent,
individually or collectively, under this Agreement or any of the other Loan
Documents or in respect of any of the Loans, the Letters of Credit or the Notes
or other instruments at any time evidencing any thereof, whether existing on the
date of this Agreement or arising or incurred hereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise.
Outstanding Obligations. As of any date of determination, the sum of
the outstanding principal amount of the Loans under the Facility (including
Swingline Loans and Competitive Bid Loans) plus the stated amount of each Letter
of Credit issued under ss.2.9 which has not expired or terminated prior to the
date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Acquisition. The acquisition by Borrower or any Related
Company of Real Estate Assets which, in the aggregate, are primarily leased or
intended to be leased primarily for industrial or office purposes (including
"flex" and warehouse uses), whether such acquisition is accomplished by a direct
purchase of such Real Estate Assets or by a merger or acquisition of stock or
other ownership interests or debt securities such that the owner of such Real
Estate becomes a Related Company.
Permitted Build-To-Suit Developments. Permitted Developments with
respect to which, at the date of determination, at least sixty percent (60%) of
the net leasable area of the buildings to be constructed pursuant thereto are
subject to executed Leases having an average term of not less than four (4)
years and which obligate the tenants named therein to accept occupancy and
commence paying rent promptly upon the issuance of a certificate of occupancy
with respect thereto.
Permitted Developments. The construction of any new buildings or the
construction of additions expanding existing buildings or the rehabilitation of
the existing buildings (other than normal refurbishing and tenant fit up work in
previously completed buildings) relating to any Real Estate Assets of the
Borrower or any of the Related Companies and each Permitted Development shall be
counted for purposes of ss.8.2 in the amount of the total projected cost of such
project from the time of commencement of the applicable construction work until
the earlier of (i) the date that 90% of such project is leased (but not prior to
the date that a final certificate of occupancy has been issued with respect to
such project) or (ii) the first anniversary of the issuance of such certificate
of occupancy.
Permitted Inventory Developments. Permitted Developments which are not
Permitted Build-To-Suit Developments.
Permitted Liens. The following Liens, security interests and other
encumbrances:
12
(i) liens to secure taxes, assessments and other governmental
charges in respect of obligations not overdue;
(ii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(iii) liens in respect of judgments or awards;
(iv) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens which are either covered by a full indemnity
from a creditworthy indemnitor or have been in existence less than 120 days from
the date of creation thereof in respect of obligations not overdue;
(v) encumbrances consisting of easements, rights of way,
Leases, covenants, restrictions on the use of real property and defects and
irregularities in the title thereto; and other minor liens or encumbrances none
of which in the opinion of the Borrower interferes materially with the use of
the property affected in the ordinary conduct of the business of the Borrower,
and which matters (x) do not individually or in the aggregate have a materially
adverse effect on the value of the Unencumbered Property and (xx) do not make
title to such property unmarketable by the conveyancing standards in effect
where such property is located; or
(vi) mortgages held by Borrower or a Co-Borrower securing
Indebtedness described in ss.8.1(e).
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Preferred Distribution. The declaration or payment of any dividend or
distribution of cash or cash equivalents to the holders of preferred shares of
beneficial interest in the Company or the holders of preferred units of limited
partnership interest of the Borrower
Prepayment Date. See ss.3.3.
Prime Rate. The variable per annum rate of interest designated from
time to time by Fleet as its Prime Rate. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate being charged to any
customer.
Prime Rate Loans. Those Loans bearing interest calculated by reference
to the Prime Rate.
Pro Forma Unsecured Debt Service Charges. For any fiscal quarter of the
Borrower, an amount determined by the Agent based on a twenty-five (25) year
mortgage style amortization schedule, calculated on the Pro Forma Unsecured
Principal Amount and an interest rate equal to the greater of (i) the weighted
average annual interest rate actually applicable to the Unsecured Indebtedness
during such fiscal quarter or (ii) the then current ten (10) year U.S. Treasury
bill yield plus one and three-quarters percent (1.75%).
13
Pro Forma Unsecured Principal Amount. (a) With respect to Compliance
Certificates delivered pursuant to ss.7.4(d), the maximum principal amount of
Unsecured Indebtedness outstanding at any time during the applicable fiscal
quarter; (b) with respect to Compliance Certificates delivered pursuant to
ss.2.5(a), ss.2.9(a), ss.2.10(k), or ss.11.1, the principal amount of Unsecured
Indebtedness outstanding after giving effect to the requested Loan or after
issuance of the requested Letter of Credit; (c) with respect to Compliance
Certificates delivered pursuant to ss.7.13, the principal amount of Unsecured
Indebtedness outstanding after giving effect to the proposed transaction
including any payments on the Loans to be made in connection therewith.
Properties. All Real Estate Assets, Real Estate, and all other assets,
including, without limitation, intangibles and personalty owned by the Borrower
or any of the Related Companies.
Rating Agencies. Moody's Investors Services, Inc., Standard & Poor's, a
division of The McGraw Hill Companies, Inc. and Fitch Ratings, or their
respective successors.
Real Estate. All real property at any time owned, leased (as lessee or
sublessee) or operated by the Borrower, any Co-Borrower, or any of the Related
Companies.
Real Estate Assets. Those fixed and tangible properties consisting of
land, buildings and/or other improvements owned by the Borrower, by any
Co-Borrower or by any of the Related Companies at the relevant time of reference
thereto, including without limitation, the Unencumbered Properties and the
Unencumbered Development Properties, but excluding all leaseholds other than
leaseholds under ground leases which either have an unexpired term of at least
30 years or contain a purchase option for nominal consideration.
Record. The grid attached to any Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by any
Lender with respect to any Loan.
Recourse Indebtedness. All Indebtedness except Indebtedness with
respect to which recourse for payment is contractually limited (except for
customary exclusions) to specific assets encumbered by a lien securing such
Indebtedness.
Register. See ss.18.3.
Related Business. A business which is either (i) customarily ancillary
to the real estate business such as real estate consulting, brokerage or
management or (ii) provides telecommunication or other goods and services to the
tenants of the Properties.
Related Companies. The entities listed and described on Schedule 1.3
hereto, or thereafter, any entity whose financial statements are consolidated or
combined with the Company's pursuant to Generally Accepted Accounting
Principles, or any ERISA Affiliate.
Release. See ss.6.18(c)(iii).
14
Requisite Lenders. As of any date, the Lenders whose aggregate
Commitments constitute at least sixty-six percent (66%) of the Total Commitment,
provided that on and after the date that Commitments which constitute at least
sixty-six percent (66%) of the Total Commitment have terminated pursuant to
ss.12.2, Requisite Lenders shall mean the Lenders whose aggregate Credit
Exposures constitute at least sixty-six percent (66%) of the aggregate Credit
Exposures of all Lenders, and provided that the Commitments (or the Credit
Exposures) of any Delinquent Lenders shall be disregarded when determining the
Requisite Lenders.
Reserve Amount. With respect to any Real Estate Assets or group of Real
Estate Assets, a normalized annual reserve for capital expenditures, replacement
reserves and leasing costs at the rate of $0.10 per year per square foot of net
leasable area contained in all buildings on such Real Estate Assets. When the
Reserve Amount is used in computing an amount with respect to a fiscal period
which is shorter than a year, said amount shall be appropriately prorated.
Responsible Officer. With respect to the Company, any one of its
Chairman, President, Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, Treasurer, Executive Vice Presidents or Senior Vice
Presidents.
Rouse Kent Joint Venture. A joint venture between Rouse Kent Limited,
which is owned by certain senior executives of the Company, and the County of
Kent, England to develop a 650-acre, mixed-use park approximately 25 miles
southeast of London.
S&P Rating. The rating for Borrower's senior long-term unsecured debt
assigned by Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc., or its successors.
Secured Indebtedness. All Indebtedness of the Borrower and any of the
Related Companies which is secured by a Lien on any Properties.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent or other controlling Person shall at any
time own directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding Voting Interests.
Swingline Commitment. The Commitment of the Swingline Lender to make
Swingline Loans up to a maximum principal amount of $20,000,000 at any time
outstanding. The Swingline Commitment is a portion of, and not in addition to,
the Total Commitment.
Swingline Lender. Fleet or any other Lender as a successor of Swingline
Lender.
Swingline Loan. Any Loan made by the Swingline Lender to the Borrower
pursuant to the Swingline Lender's Swingline Commitment.
Swingline Loan Request. A Loan Request in the form of Exhibit D hereto
given by Borrower with respect to a Swingline Loan.
15
Swingline Note. The Note from Borrower payable to the Swingline Lender
in the principal amount of $20,000,000 as evidence of the Swingline Loans
Tangible Net Worth. Total Assets minus Total Liabilities minus all
intangibles determined in accordance with Generally Accepted Accounting
Principles.
Telerate Page 3750. The display designated as "Page 3750" on the
Telerate Service, or such other page as may replace Page 3750 on that service or
such other service as may be nominated by the British Bankers' Association as
the information vender for the purpose of displaying British Bankers'
Association interest settlement rates for U.S. Dollar deposits.
Total Assets. The sum of (i) the assets classified as cash and cash
equivalents on the consolidated balance sheet of the Borrower prepared in
accordance with Generally Accepted Accounting Principles as of the end of the
most recent fiscal quarter for which financial statements have been provided
pursuant to ss.7.4, plus (ii) the amount determined by taking (a) Adjusted
EBITDA for the most recent fiscal quarter for which financial statements have
been provided pursuant to ss.7.4; (b) then multiplying by four (4); (c) then
subtracting from such annualized Adjusted EBITDA the Reserve Amount for all Real
Estate Assets and (d) then dividing such difference by 0.095; plus (iii)
development in progress as shown on the consolidated balance sheet of the
Borrower prepared in accordance with Generally Accepted Accounting Principles as
of the end of the most recent fiscal quarter for which financial statements have
been provided pursuant to ss.7.4. Adjusted EBITDA used to compute Total Assets
will be computed on a pro forma basis as though any Real Estate Assets acquired
or disposed of since the first day of the applicable fiscal quarter had been
acquired or disposed of prior to the first day of such fiscal quarter.
Total Debt. The sum of the following (without duplication): (i) all
Indebtedness of the Borrower included in the liabilities portion of the
Borrower's balance sheet prepared in accordance with Generally Accepted
Accounting Principles as of the end of the most recent fiscal quarter for which
financial statements have been provided pursuant to ss.7.4, including, without
limitation, the Indebtedness presently shown on the balance sheet line items
designated as "mortgage loans", "unsecured notes" and "credit facility" adjusted
to reflect any such Indebtedness incurred or repaid between the end of such
fiscal quarter and the date of determination, (ii) plus all of Borrower's
Indebtedness of a type which is not included on the balance sheet described in
clause (i) of this definition, and (iii) to the extent not already included in
this definition, the Unconsolidated Entity Percentage of the Indebtedness of
each of the Unconsolidated Entities provided, however, that if any such
Indebtedness of an Unconsolidated Entity is Recourse Indebtedness, then the full
amount of such Indebtedness shall be included in Total Debt rather than only the
Unconsolidated Entity Percentage thereof.
Total GAAP Assets. The aggregate book value of all assets of the
Borrower and the Related Companies consolidated and determined in accordance
with Generally Accepted Accounting Principles.
16
Total Commitment. The sum of the Commitments of the Lenders, as in
effect from time to time.
Total Liabilities. The sum of the following (without duplication): (i)
all liabilities of the Borrower and the Related Companies consolidated and
determined in accordance with Generally Accepted Accounting Principles, (ii) all
Indebtedness of the Borrower and the Related Companies whether or not so
classified, including, without limitation, all outstanding Loans under this
Agreement, and (iii) the balance available for drawing under letters of credit
issued for the account of the Borrower or any of the Related Companies.
Total Operating Cash Flow. With respect to any fiscal period of the
Borrower the sum of (i) Funds From Operations minus (ii) the portion of Funds
From Operations attributable to Unconsolidated Entities, plus (iii) cash
actually distributed to Borrower during such fiscal period from the earnings of
any Unconsolidated Entities and not subsequently reinvested by Borrower in such
Unconsolidated Entity plus (iv) Interest Expense (excluding capitalized interest
and any other portions of Interest Expense which are not deducted in the
computation of Funds From Operations) plus (v) Preferred Distributions paid
minus (vi) the Reserve Amount for all Real Estate Assets owned by the Borrower
or any of the Related Companies, all as determined in accordance with the
applicable definitions set forth herein except that Funds From Operations shall
be adjusted to remove the effect of recognizing rental income on a straight-line
basis over the applicable lease term.
Type. As to any Loan its nature as a Prime Rate Loan or a LIBOR Rate
Loan.
Unconsolidated Entity. As of any date, any Person in whom the Borrower,
the Company or any Related Company holds an Investment, and whose financial
results would not be consolidated under Generally Accepted Accounting Principles
with the financial statements of the Borrower, if such statements were prepared
as of such date. Unconsolidated Entities existing on the date hereof are set
forth in Schedule 1.3.
Unencumbered Development Property. A Real Estate Asset which at the
date of determination (i) is 100% owned in fee by Borrower or one of the
Co-Borrowers, (ii) is in the process of being improved with one or more
industrial or office buildings, including "flex" and warehouse buildings, of a
type consistent with the Borrower's business strategy and is classified as
"development in progress" on the Borrower's consolidated balance sheet prepared
in accordance with Generally Accepted Accounting Principles; (iii) is not
directly or indirectly subject to any Lien (other than Permitted Liens) or to
any negative pledge agreement or other agreement that prohibits the creation of
any Lien thereon; (iv) is a Real Estate Asset with respect to which each of the
representations contained in ss.6.18 hereof is true and accurate as of such
date of determination; (v) may be legally conveyed separately from any other
Real Estate without the need to obtain any subdivision approval, zoning variance
or other consent or approval from any unrelated Person, and (vi) is located in
the United States, Canada or Europe. Each Real Estate Asset which satisfies the
conditions set forth in this definition or with respect to which the Requisite
Lenders have granted the necessary waivers pursuant to ss.5.2 shall be deemed
to be an Unencumbered Development Property only during such periods of time as
Borrower has included the same on the list of Unencumbered Development
Properties attached to the most recent Compliance Certificate delivered
hereunder, and shall cease to be considered an Unencumbered Development Property
on the earlier of (i) the date that 90% of such project is leased (but not prior
to the date that a final certificate of occupancy has been issued with respect
to such project) or (ii) the first anniversary of the issuance of such
certificate of occupancy. Thereafter, such Real Estate Asset may be an
Unencumbered Property, assuming that it meets the requirements set forth in the
definition of an Unencumbered Property. At no time shall the same Real Estate
Asset be counted as both an Unencumbered Property and an Unencumbered
Development Property.
17
Unencumbered Development Property Value. With respect to any
Unencumbered Development Property at any time, the amount related to such
property included on the line captioned "development in progress" on the
Borrower's balance sheet prepared in accordance with Generally Accepted
Accounting Principles.
Unencumbered Net Operating Income. With respect to any fiscal period of
the Borrower, the sum of the Net Operating Income of all Real Estate Assets
which were Unencumbered Properties hereunder during such fiscal period,
provided, however, there shall be excluded therefrom (i) the amount necessary so
that the Net Operating Income of any one Unencumbered Property does not exceed
fifteen percent (15%) of Unencumbered Net Operating Income and (ii) the amount
necessary so that the aggregate Net Operating Income of all Unencumbered
Properties located in Europe does not exceed four percent (4%) of Unencumbered
Net Operating Income.
Unencumbered Property. A Real Estate Asset which at the date of
determination, (i) is 100% owned in fee by Borrower or one of the Co-Borrowers,
(ii) is improved with one or more completed industrial or office buildings
(including "flex" and warehouse buildings) of a type consistent with the
Borrower's business strategy; (iii) is not directly or indirectly subject to any
Lien (other than Permitted Liens) or to any negative pledge agreement or other
agreement that prohibits the creation of any Lien thereon; (iv) is a Real Estate
Asset with respect to which each of the representations contained in ss.6.18 and
ss.6.21 hereof is true and accurate as of such date of determination; (v) may be
legally conveyed separately from any other Real Estate without the need to
obtain any subdivision approval, zoning variance or other consent or approval
from an unrelated Person; (vi) is located in the United States, Canada or
Europe, and (vii) to the extent requested by the Agent, the Borrower has
delivered to the Agent historical operating and leasing information relating to
such Unencumbered Property, in form and substance satisfactory to the Agent.
Each Real Estate Asset which satisfies the conditions set forth in this
definition or with respect to which the Requisite Lenders have granted the
necessary waivers pursuant to ss.5.2 shall be deemed to be an Unencumbered
Property only during such periods of time as Borrower has included the same on
the list of Unencumbered Properties attached to the most recent Compliance
Certificate delivered hereunder.
Unencumbered Property Value. With respect to any Unencumbered Property
at any time, an amount computed as follows: (a) the Net Operating Income of such
Unencumbered Property for the most recent fiscal quarter of the Borrower for
which financial statements have been delivered to the Agent pursuant to ss.7.4;
(b) then multiplying by four (4); (c) then subtracting from such annualized Net
Operating Income the Reserve Amount for such Unencumbered Property; and (d)
dividing such difference by 0.095. In the event that the Unencumbered Property
Value of any Unencumbered Property computed pursuant to the preceding sentence
exceeds fifteen percent (15%) of the Value of All Unencumbered Properties as of
the end of the most recent fiscal quarter of the Borrower for which financial
statements have been delivered to the Agent pursuant to ss.7.4 then the amount
in excess of said 15% level will be excluded when computing the Unencumbered
Property Value for such Unencumbered Property. With respect to any Unencumbered
Property which, during the applicable fiscal quarter, has been acquired by
Borrower, Borrower may compute the Unencumbered Property Value for such
Unencumbered Property based on a pro forma Net Operating Income for such fiscal
quarter, which computation must be approved by the Agent.
18
Unsecured Indebtedness. All Indebtedness of Borrower or of any of the
Related Companies which is not secured by a Lien on any Properties including,
without limitation, the Outstanding Obligations, the Multi-Currency Loans, the
Unsecured Term Notes and any Indebtedness evidenced by any bonds, debentures,
notes or other debt securities presently outstanding or which may be hereafter
issued by Borrower or by the Company. Unsecured Indebtedness shall not include
accrued ordinary operating expenses payable on a current basis.
Unsecured Term Notes. All notes from time to time outstanding under the
Indenture dated August 14, 1997 among Borrower, the Company and Bank One Trust
Company, N.A. (formerly known as The First National Bank of Chicago), as
Trustee, as amended and supplemented through the date hereof and as the same may
be further amended or supplemented from time to time.
Value of All Unencumbered Properties. When determined as of the end of
a fiscal quarter, an amount computed as follows: (a) Unencumbered Net Operating
Income for such quarter; (b) then multiplying by four (4); (c) then subtracting
from such annualized Net Operating Income the Reserve Amount for all
Unencumbered Properties; (d) dividing such difference by 0.095 and (e) then
adding the aggregate Unencumbered Development Property Value of all of the
Unencumbered Development Properties as of the date of determination. When
determined as of a date which is during a fiscal quarter based on an updated
list of Unencumbered Properties and Unencumbered Development Properties attached
to the applicable Compliance Certificate as provided in the last sentence of
ss.5.1 or in ss.7.13, the Value of All Unencumbered Properties most recently
computed as provided in the preceding sentence of this definition will be
adjusted by subtracting the Unencumbered Property Value of the previous
Unencumbered Properties and Unencumbered Development Properties which have been
deleted from such list and by adding the Unencumbered Property Value of the
Unencumbered Properties and Unencumbered Development Properties which have been
added to such list. To the extent the aggregate Unencumbered Property Values of
the Unencumbered Properties and Unencumbered Development Properties located in
Europe exceed four percent (4%) of the Value of All Unencumbered Properties, the
amount in excess of said 4% level will be excluded when computing the Value of
All Unencumbered Properties and to the extent the aggregate Unencumbered
Development Property Value of all of the Unencumbered Development Properties
exceeds the lesser of $150,000,000 or ten percent (10%) of the Value of All
Unencumbered Properties, the amount in excess of said level will be excluded
when computing the Value of all Unencumbered Properties.
19
Variable Rate Indebtedness. The Loans and all other Indebtedness of the
Borrower which bears interest at a rate which is not fixed either through
maturity or for a term of at least thirty-six (36) months from the date that
such fixed rate became effective.
Voting Interests. Stock or similar ownership interests, of any class
or classes (however designated), the holders of which are at the time entitled,
as such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
ss.1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by Generally Accepted Accounting Principles applied on
a consistent basis by the accounting entity to which they refer and, except as
otherwise expressly stated, all use of accounting terms with respect to the
Borrower shall reflect the consolidation of the financial statements of Borrower
and the Related Companies.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by Generally
Accepted Accounting Principles, which terms are defined in the Uniform
Commercial Code as in effect in Massachusetts, have the meanings assigned to
them therein.
(h) Reference to a particular "ss." refers to that section of
this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
(j) The words "so long as any Loan or Note is outstanding"
shall mean so long as such Loan or Note is not indefeasibly paid in full in
cash.
20
ss.2. REVOLVING CREDIT FACILITY.
ss.2.1. Commitment to Lend; Limitation on Total Commitment. Subject to
the provisions of ss.2.5 and the other terms and conditions set forth in this
Agreement, each of the Lenders severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time between the Effective
Date and the Maturity Date upon notice by the Borrower to the Agent given and
approved by the Agent in accordance with ss.2.5, such sums as are requested by
the Borrower up to a maximum aggregate principal amount (after giving effect to
all amounts requested) such that such Lender's Credit Exposure (excluding the
Competitive Bid Loans owed to such Lender) does not exceed such Lender's
Commitment, provided that the sum of the Outstanding Obligations (after giving
effect to all amounts requested) shall not at any time exceed the Maximum Credit
Amount. The Loans under this ss.2.1 shall be made pro rata in accordance with
each Lender's Commitment Percentage and the Lenders shall at all times
immediately adjust inter se any inconsistency between each Lender's outstanding
principal amount thereof and each Lender's Commitment. Each request for a Loan
hereunder shall constitute a representation and warranty by the Borrower that
the conditions set forth in ss.10 or ss.11 (whichever is applicable) have been
satisfied on the date of such request and will be satisfied on the proposed
Borrowing Date of the requested Loan, provided that the making of such
representation and warranty by Borrower shall not limit the right of any Lender
not to lend upon a determination by the Requisite Lenders that such conditions
have not been satisfied.
ss.2.2. Changes in Total Commitment.
(a) Provided that no Default or Event of Default has occurred
and is continuing, the Borrower shall have the option to request an increase in
the Total Commitment to not more than $400,000,000 by written notice to the
Agent. Upon receipt of such notice, the Agent shall consult with Arranger and
shall notify the Borrower of the amount of the arrangement fees to be paid to
Arranger and the upfront fees to be paid to any Lenders who provide an
Additional Commitment in connection with such increase in the Total Commitment.
If the Borrower agrees to pay the arrangement and upfront fees so determined,
then the Agent shall send a notice to all Lenders (the "Additional Commitment
Request Notice") informing them of the Borrower's request to increase the Total
Commitment and of the upfront fees to be paid with respect thereto. Each Lender
who desires to provide an Additional Commitment upon such terms shall provide
Agent with a written commitment letter specifying the amount of the Additional
Commitment by which it is willing to provide prior to such deadline as may be
specified in the Additional Commitment Request Notice. If the requested increase
is oversubscribed then the Agent and the Arranger shall allocate the Commitment
Increase among the Lenders who provide such commitment letters on such basis as
the Agent and the Arranger shall determine in their sole discretion. If the
Additional Commitments so provided are not sufficient to provide the full amount
of the Commitment Increase requested by the Borrower, then the Agent may, but
shall not be obligated to, invite one or more Eligible Assignees to become a
Lender and provide an Additional Commitment. The Agent shall provide all Lenders
with a notice setting forth the amount, if any, of the Additional Commitment to
be provided by each Lender and the revised Commitment Percentages which shall be
applicable after the effective date of the Commitment Increase specified therein
(the "Commitment Increase Date").
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(b) On the Commitment Increase Date the outstanding principal
balance of the Loans shall be reallocated among the Lenders such that after the
Commitment Increase Date the outstanding principal amount of Loans owed to each
Lender shall be equal to such Lender's Commitment Percentage (as in effect after
the Commitment Increase Date) of the outstanding principal amount of all Loans.
On the Commitment Increase Date those Lenders whose Commitment Percentage is
increasing shall advance the funds to the Agent and the funds so advanced shall
be distributed among the Lenders whose Commitment Percentage is decreasing as
necessary to accomplish the required reallocation of the outstanding Loans. The
funds so advanced shall be Prime Rate Loans until converted to LIBOR Rate Loans
which are allocated among all Lenders based on their Commitment Percentages. To
the extent such reallocation results in certain Lenders receiving funds which
are applied to LIBOR Loans prior to the last day of the applicable Interest
Period, then the Borrower shall pay to the Agent for the account of the affected
Lenders the LIBOR Prepayment Fee which shall be determined separately for each
such Lender in the manner set forth in ss.3.3. On the Commitment Increase Date,
the Lenders' respective interests in outstanding Letters of Credit shall also be
adjusted to reflect the revised Commitment Percentages. Upon request from any
Lender whose interest in an outstanding Letter of Credit is so increasing, the
Borrower will pay additional Letter of Credit fees for the amount of such
increase at the rate provided in ss.2.9(c) prorated for the period from the
Commitment Increase Date until the expiration of the applicable Letter of
Credit.
(c) The Borrower shall have the right at any time upon at
least ten (10) Business Days' prior written notice to the Agent, to reduce by
$1,000,000 or an integral multiple of $1,000,000 in excess thereof the
unborrowed portion of the then Total Commitment, provided that the Total
Commitment shall not be reduced to less than $200,000,000, whereupon the
Commitments of the Lenders shall be reduced pro rata in accordance with their
respective Commitment Percentages by the amount specified in such notice. Upon
the effective date of any such reduction, the Borrower shall pay to the Agent
for the respective accounts of the Lenders the full amount of any Facility Fee
then accrued on the amount of the reduction. No reduction of the Commitments may
be reinstated.
(d) Upon the effective date of each increase or reduction in
the Total Commitment pursuant to this ss.2.2 the parties shall enter into an
amendment of this Agreement revising Schedule 1.2 and the Borrower shall execute
and deliver to the Agent new Notes for each Lender whose Commitment has changed
so that the principal amount of such Lender's Note (not including the Note
relating to the Swingline Commitment) shall equal its Commitment. The Agent
shall deliver such replacement Notes to the respective Lenders in exchange for
the Notes replaced thereby which shall be surrendered by such Lenders. Such new
Notes shall provide that they are replacements for the surrendered Notes and
that they do not constitute a novation, shall be dated as of the Commitment
Increase Date or the effective date of such reduction in the Total Commitment,
as applicable, and shall otherwise be in substantially the form of the replaced
Notes. Within five (5) days of issuance of any new Notes pursuant to this
ss.2.2(d), the Borrower shall deliver an opinion of counsel, addressed to the
Lenders and the Agent, relating to the due authorization, execution and delivery
of such new Notes and the enforceability thereof, in form and substance
satisfactory to the Lenders. The surrendered Notes shall be canceled and
returned to the Borrower.
22
ss.2.3. The Notes. The Loans under the Facility shall be evidenced by
separate promissory notes of the Borrower in substantially the form of Exhibit A
hereto (each a "Note"), and completed with appropriate insertions and there
shall also be a Swingline Note payable to the order of the Swingline Lender in
the principal amount of the Swingline Commitment. One or more Notes shall be
payable to the order of each Lender in an aggregate principal amount equal to
such Lender's Commitment. The Borrower irrevocably authorizes each Lender to
make or cause to be made, at or about the time of the Borrowing Date of any Loan
or at the time of receipt of any payment of principal on such Lender's Note, an
appropriate notation on such Lender's Record reflecting the making of such Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Loans set forth on such Lender's Record shall (absent manifest error) be
prima facie evidence of the principal amount thereof owing and unpaid to such
Lender, but the failure to record, or any error in so recording, any such amount
on the Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Note to make payments of principal of or
interest on any Note when due. Upon receipt of an affidavit of an officer of any
Lender as to the loss, theft, destruction or mutilation of its Note or any other
security document which is not of public record, and, in the case of any such
loss, theft, destruction or mutilation, upon cancellation of such Note or other
security document, Borrower will issue, in lieu thereof, a replacement Note or
other security document in the same principal amount thereof and otherwise of
like tenor.
ss.2.4. Interest on Loans.
(a) Each Prime Rate Loan shall bear interest for the period
commencing with the Borrowing Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate equal to the Prime Rate.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Borrowing Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate equal to the Applicable LIBOR
Margin (or, with respect to Competitive Bid Loans, the applicable Competitive
Bid Margin) per annum above the LIBOR Rate determined for such Interest Period.
(c) The Borrower unconditionally promises to pay interest on
each Loan in arrears on each Interest Payment Date with respect thereto.
ss.2.5. Requests for Loans.
(a) The Borrower shall give to the Agent written notice in the
form of Exhibit B hereto of each Loan requested hereunder (a "Loan Request") no
later than 11:00 a.m. (Boston time) on (a) the Business Day prior to the
proposed Borrowing Date of any Prime Rate Loan other than a Swingline Loan and
(b) two (2) LIBOR Business Days prior to the proposed Borrowing Date of any
LIBOR Rate Loan. Each such notice shall specify (i) the principal amount of the
Loan requested, (ii) the proposed Borrowing Date of such Loan, (iii) the
Interest Period for such Loan, and (iv) the Type of such Loan, and shall be
accompanied by a statement in the form of Exhibit C hereto signed by a
Responsible Officer setting forth in reasonable detail computations evidencing
compliance with the covenants contained in ss.9.1 through ss.9.8 hereof after
giving effect to such requested Loan (a "Compliance Certificate"). Within one
(1) Business Day after receipt of a Loan Request, the Agent shall provide to
each of the Lenders by facsimile a copy of such Loan Request and accompanying
Compliance Certificate and each Lender shall, within 24 hours thereafter, notify
the Agent if it believes that any of the conditions contained in ss.11 of this
Agreement has not been met or waived. If such a notice is given the Requisite
Lenders shall promptly determine whether all of the conditions contained in
ss.11 of this Agreement have been met or waived. If no such notice is given by
any Lender or if following such notice the Requisite Lenders determine that the
conditions contained in ss.11 have been met or waived, each of the Lenders shall
be obligated to fund its Commitment Percentage of the requested Loans. Each such
Loan Request shall be irrevocable and binding on the Borrower and the Borrower
shall be obligated to accept the Loan requested from the Lenders on the proposed
Borrowing Date. Each Loan Request shall be in a minimum aggregate amount of
$3,000,000 or an integral multiple of $1,000,000 in excess thereof.
23
(b) Notwithstanding anything contained in ss.2.5 (a) to the
contrary, in the event that the making of a requested Loan would cause
non-compliance with any of the covenants contained in ss.9.1 through ss.9.7
hereof, the Agent may, in its sole discretion, reduce the amount of the Loan
Request to an amount which would enable the Borrower to maintain compliance with
such otherwise defaulted covenant or covenants and Borrower shall accept the
Loan made pursuant to such reduced Loan Request.
ss.2.6. Conversion Options.
(a) The Borrower may elect from time to time to convert any
outstanding Loan to a Loan of another Type, provided that (i) with respect to
any such conversion of a LIBOR Rate Loan to a Prime Rate Loan, the Borrower
shall give the Agent written notice of such election no later than 11:00 a.m.
(Boston time) on the Business Day prior to the conversion; (ii) with respect to
any such conversion of a LIBOR Rate Loan into a Prime Rate Loan, such conversion
shall only be made on the last day of the Interest Period with respect thereto;
(iii) subject to the further proviso at the end of this section and subject to
ss.2.6(b) and ss.2.6(d) hereof, with respect to any such conversion of a Prime
Rate Loan to a LIBOR Rate Loan, the Borrower shall give the Agent written notice
of such election no later than 11:00 a.m. (Boston time) at least two (2) LIBOR
Business Days prior to the conversion and (iv) no Loan may be converted into a
LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing. On the date on which such conversion is being made, each Lender
shall take such action as is necessary to transfer its Commitment Percentage of
such Loans to its Domestic Lending Office or its LIBOR Lending Office, as the
case may be. All or any part of outstanding Loans of any Type may be converted
as provided herein, provided further that each Conversion Request relating to
the conversion of a Prime Rate Loan to a LIBOR Rate Loan shall be for an amount
equal to $3,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall be irrevocable by the Borrower.
(b) Any Loans of any Type may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in ss.2.6 (a); provided that no
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing but shall be automatically converted to a Prime
Rate Loan on the last day of the first Interest Period relating thereto ending
during the continuance of any Default or Event of Default of which the officers
of the Agent active upon the Borrower's account have actual knowledge.
24
(c) In the event that the Borrower does not notify the Agent
of its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Prime Rate Loan at the end of the applicable
Interest Period.
(d) The Borrower may not request a LIBOR Rate Loan pursuant to
ss.2.5, elect to convert a Prime Rate Loan to a LIBOR Rate Loan pursuant to
ss.2.6(a) or elect to continue a LIBOR Rate Loan pursuant to ss.2.6(b) if, after
giving effect thereto, there would be greater than eight (8) LIBOR Rate Loans
outstanding. Any Loan Request for a LIBOR Rate Loan that would create greater
than eight (8) LIBOR Rate Loans outstanding shall be deemed to be a Loan Request
for a Prime Rate Loan.
ss.2.7. Funds for Loans.
(a) Subject to ss.2.5 and other provisions of this Agreement,
not later than 1:00 p.m. (Boston time) on the proposed Borrowing Date of any
Loans, each of the Lenders will make available to the Agent, at the Agent's Head
Office, in immediately available funds, the amount of such Lender's Commitment
Percentage of the amount of the requested Loans. Upon receipt from each Lender
of such amount, and upon receipt of the documents required by ss.ss.10 or 11
(whichever is applicable) and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the Borrower
the aggregate amount of such Loans made available to the Agent by the Lenders.
The failure or refusal of any Lender to make available to the Agent at the
aforesaid time and place on any Borrowing Date the amount of its Commitment
Percentage of the requested Loans shall not relieve any other Lender from its
several obligation hereunder to make available to the Agent the amount of such
other Lender's Commitment Percentage of any requested Loans but shall not
obligate any other Lender or Agent to fund more than its Commitment Percentage
of the requested Loans or to increase its Commitment Percentage.
(b) The Agent may, unless notified to the contrary by any
Lender prior to a Borrowing Date, assume that such Lender has made available to
the Agent on such Borrowing Date the amount of such Lender's Commitment
Percentage of the Loans to be made on such Borrowing Date, and the Agent may
(but it shall not be required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any Lender makes available
to the Agent such amount on a date after such Borrowing Date, such Lender shall
pay to the Agent on demand an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) below, of the weighted
average interest rate paid by the Agent for federal funds acquired by the Agent
during each day included in such period, times (ii) the amount of such Lender's
Commitment Percentage of such Loans, times (iii) a fraction, the numerator of
which is the number of days or portion thereof that elapsed from and including
such Borrowing Date to the date on which the amount of such Lender's Commitment
Percentage of such Loans shall become immediately available to the Agent, and
the denominator of which is 365. A statement of the Agent submitted to such
Lender with respect to any amounts owing under this paragraph shall be prima
facie evidence of the amount due and owing to the Agent by such Lender.
25
ss.2.8 Swingline Loans.
(a) Subject to the provisions of this ss. 2.8 and the other terms and
conditions set forth in this Agreement, the Swingline Lender agrees to lend to
the Borrower and the Borrower may borrow, repay and reborrow from time to time
between the Effective Date and the date which is thirty (30) days prior to the
Maturity Date, such sums as are requested by Borrower up to a maximum aggregate
principal amount of Swingline Loans outstanding (after giving effect to all
amounts requested) at any one time equal to the Swingline Commitment, provided
that the Outstanding Obligations, including the outstanding amount of Swingline
Loans (after giving effect to all amounts requested) shall not at any time
exceed the Maximum Credit Amount. All Swingline Loans will be Prime Rate Loans.
(b) The Borrower shall give to the Agent a Swingline Loan Request no
later than 11:00 a.m. (Boston time) on the proposed Borrowing Date for any
Swingline Loan. Each such Swingline Loan Request shall be irrevocable and
binding on the Borrower and the Borrower shall be obligated to accept the
Swingline Loan requested from the Swingline Lender on the proposed Borrowing
Date. Each Swingline Loan Request shall be in a minimum aggregate amount of
$50,000 or in integral multiple of $50,000 in excess thereof. Unless the
Swingline Lender determines that certain of the conditions contained in ss.11
of this Agreement have not been met or waived as of the proposed Borrowing Date,
then the Swingline Lender will make available to the Agent, and the Agent will
make available to the Borrower, the aggregate amount of the Swingline Loans so
requested before the close of business on the Borrowing Date. The Borrower
agrees to repay each Swingline Loan within seven (7) Business Days after the
Borrowing Date thereof. The funds used to repay such Swingline Loan may be from
Loans made pursuant to ss.2.1, or with other funds of the Borrower, but the
Borrower may not use the proceeds of one Swingline Loan to repay a previous
Swingline Loan. The Borrower and the Lenders agree that upon written demand by
the Swingline Lender (which may be given at any time and shall be deemed given
if any Swingline Loan is not repaid on the date required by this Agreement), the
Agent shall give each Lender a notice requiring the funding of a Mandatory Prime
Rate Loan for the purpose of repaying a Swingline Loan. Within one (1) business
day after receipt of such notice from the Agent, each Lender shall be obligated
to fund its Commitment Percentage of the Mandatory Prime Rate Loan. Upon the
funding of such Mandatory Prime Rate Loan, the Agent shall forward the proceeds
thereof to the Swingline Lender to repay the applicable Swingline Loan. Each
Lender shall be obligated to fund its Commitment Percentage of Mandatory Prime
Rate Loans hereunder regardless of whether or not all of the conditions
contained in ss.11 of this Agreement have been met or waived and even if the
funding is to take place after the Maturity Date.
(c) In the event that a Mandatory Prime Rate Loan cannot be made on the
date required in the paragraph (b) above, upon written demand by the Swingline
Lender, each other Lender shall purchase from the Swingline Lender a
participating interest in the outstanding Swingline Loan in an amount equal to
such other Lender's Commitment Percentage of such outstanding Swingline Loan as
of the date of such purchase. Each Lender agrees to purchase its Commitment
Percentage of each Swingline Loan within one (1) business day after such demand
therefor is made by the Swingline Lender and on such date of purchase, an amount
equal to such Lender's Commitment Percentage of the outstanding principal amount
of the Swingline Loan to be purchased by such Lender shall be advanced to the
Agent and upon receipt of such funds the Agent shall transfer such funds to the
Swingline Lender. Upon any sale by the Swingline Lender to any other Lender of a
participating interest in any Swingline Loan pursuant to this paragraph, the
Swingline Lender represents and warrants to such other Lender that the Swingline
Lender is the legal and beneficial owner of the interest being sold by it, free
and clear of any liens, but makes no other representation or warranty. Except
for such representation and warranty, the Swingline Lender shall have no
responsibility or liability to any other Lender with respect to the Swingline
Loans or the participation therein so sold, and no Lender shall have any
recourse against the Swingline Lender with respect to such Swingline Loans or
participation therein, except that the Swingline Lender shall pay to each Lender
that purchases a participation interest in Swingline Loans pursuant to this
paragraph such Lender's ratable share of the payments, if any, actually received
by the Swingline Lender on account of such Swingline Loans. If and to the extent
that any Lender does not so advance the purchase price for such participation
interest as required by this paragraph, such Lender agrees to pay to the Agent,
for the account of Swingline Lender, on demand an amount computed in the same
manner as the amount due to the Agent from a Lender which has made available
funds for loans after the Borrowing Date thereof pursuant to ss.2.7(b).
26
ss.2.9. Letters of Credit.
(a) Up to $30,000,000 of the Commitments may be used by Borrower for
the issuance of Letters of Credit by the Agent for the account of the Borrower
subject to the terms and conditions set forth herein. Each Letter of Credit
shall be denominated in Dollars and shall be a standby letter of credit issued
to support the obligations of Borrower in connection with any purposes for which
the proceeds of the Loans may be used pursuant to ss.7.11. Each Letter of Credit
shall have an initial term of not more than one (1) year, and shall expire no
later than five (5) Business Days prior to the Maturity Date. Although the Agent
shall be the issuing bank of the Letter of Credit, each Lender hereby accepts
for its own account and risk an undivided interest equal to its Commitment
Percentage in the Agent's obligations and rights under each Letter of Credit
issued hereunder. Each Lender unconditionally and irrevocably agrees with the
Agent that, if a draft is paid under any Letter of Credit, such Lender shall
promptly pay to the Agent an amount equal to such Lender's Commitment Percentage
of the amount of such draft or any part thereof. Upon the issuance of each
Letter of Credit hereunder, there shall be reserved from each Lender's
Commitment an amount equal to such Lender's Commitment Percentage of the stated
amount of the Letter of Credit. Such reserved amounts shall remain in place and
shall be unavailable for borrowing under ss.2.1 until the date that the Letter
of Credit expires, is fully drawn or is terminated.
(b) The Borrower shall give to the Agent a written notice in the form
of Exhibit F hereto of each Letter of Credit requested hereunder (a "Letter of
Credit Request") no less than five (5) Business Days prior to the proposed
issuance date of the requested Letter of Credit. Each Letter of Credit Request
shall specify (i) the name and address of the beneficiary of the requested
Letter of Credit, (ii) the stated amount of the requested Letter of Credit,
(iii) the proposed issuance date and expiration date of the requested Letter of
Credit, (iv) the proposed form of the requested Letter of Credit, and (v) the
permitted purpose for which the Letter of Credit will be used, and shall be
accompanied by a Compliance Certificate in the form of Exhibit C hereto signed
by a Responsible Officer setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.9 hereof after
including in the Outstanding Obligations the stated amount of the requested
Letter of Credit. The Agent may also require that the Borrower complete its
standard letter of credit application in the form of Exhibit G attached hereto,
as such standard form may be revised from time to time, and submit the same
together with the Letter of Credit Request. Within two (2) Business Days after
receipt of a Letter of Credit Request, the Agent shall provide to each of the
Lenders by facsimile a copy of such Letter of Credit Request and accompanying
Compliance Certificate and each Lender shall, within 24 hours thereafter, notify
the Agent if it believes that any of the conditions contained in ss.11 of this
Agreement has not been met or waived such that a Loan in an amount equal to the
stated amount of the requested Letter of Credit could be made on the proposed
issuance date of such Letter of Credit. If such a notice is given the Requisite
Lenders shall promptly determine whether all of the conditions contained in
ss.11 of this Agreement have been met or waived. If no such notice is given by
any Lender or if following such notice the Requisite Lenders determine that the
conditions contained in ss.11 have been met or waived, and if the Agent
determines, in its discretion, that it is willing to issue the requested Letter
of Credit, and that it is satisfied with the proposed form thereof, the Letter
of Credit shall be issued by the Agent and each of the Lenders shall then be
obligated to the Agent with respect to its Commitment Percentage of the Letter
of Credit as provided above in ss.2.9(a).
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(c) On or before the issuance date of any requested Letters of Credit,
the Borrower shall pay to the Agent for its own account an issuance fee equal to
one-eighth percent (.125%) of the stated amount of the Letter of Credit. On or
before the date of any renewal or extension of a Letter of Credit, the Borrower
shall pay to the Agent for its own account a renewal fee equal to
five-hundredths percent (.05%) of the stated amount of the Letter of Credit. The
Borrower shall pay to the Agent for the account of the Lenders a Letter of
Credit fee equal to the then prevailing Applicable LIBOR Margin per annum of the
stated amount of the Letter of Credit, which Letter of Credit fee shall be due
and payable on the issuance date of the Letter of Credit and on the date of each
renewal or extension thereof, and shall be prorated for any partial year based
on a 360-day year and paid for the actual number of days between the issuance
date and the expiration date of such Letter of Credit. Promptly after its
receipt thereof the Agent shall distribute such Letter of Credit fee to the
Lenders pro-rata in accordance with their respective Commitment Percentages.
Such fees shall be nonrefundable and shall not be further prorated in the event
that the Letter of Credit terminates prior to its scheduled expiration date. The
Borrower also agrees to reimburse the Agent for all reasonable fees, costs,
expenses and disbursements of the Agent in issuing, effecting payment under,
amending or otherwise administering any Letter of Credit.
(d) On or promptly after each Drawing Date the Agent shall notify the
Lenders and the Borrower of the amount of the draft paid by the Agent on such
Drawing Date. The payment of a draft under a Letter of Credit shall constitute
an advance of a Mandatory Prime Rate Loan which shall bear interest as a Prime
Rate Loan from the Drawing Date. On the Drawing Date each Lender shall make
available to the Agent in immediately available funds its Commitment Percentage
of the amount of the Mandatory Prime Rate Loan so advanced upon such payment of
a draft under the Letter of Credit. If the Agent receives such funds from any
Lender on a date after the Drawing Date, such Lender will be entitled to
distribution pursuant to ss.14.5 of its pro rata share of interest paid by
Borrower on such Mandatory Prime Rate Loan accrued from the Drawing Date, but
such Lender shall pay to the Agent on demand an amount computed in the same
manner as the amount due to the Agent from a Lender which has made available
funds for loans after the Borrowing Date thereof pursuant to ss.2.7(b). Each
Lender's obligation to fund its Commitment Percentage of Mandatory Prime Rate
Loans arising from the payment of a draft under a Letter of Credit shall not be
subject to the satisfaction of the conditions set forth in ss.11. Within three
(3) Business Days after each Drawing Date, the Borrower shall deliver to the
Agent a written explanation of the facts and circumstances relating to such
drawing and a Compliance Certificate and any other information requested by the
Agent for the purpose of allowing the Lenders to determine whether the drawing
or related events have resulted in a Default or Event of Default. The Agent
shall promptly provide copies of such explanation and information to the
Lenders. In the event that a Mandatory Prime Rate Loan cannot be made on the
date required in this paragraph, upon written demand by the Agent, each other
Lender shall purchase from the Agent a participating interest in the
unreimbursed draft paid pursuant to such Letter of Credit in an amount equal to
such other Lender's Commitment Percentage of such unreimbursed draft. Each
Lender agrees to purchase its Commitment Percentage of such unreimbursed draft
within one (1) Business Day after such demand therefor is made by the Agent and
on such date of purchase, an amount equal to such Lender's Commitment Percentage
of the such unreimbursed draft to be purchased by such Lender shall be advanced
to the Agent.
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(e) The Borrower's obligations under this ss. 2.9 shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which the Borrower may have or have had
against the Agent, any Lender or any beneficiary of a Letter of Credit. The
Borrower also agrees that the Agent shall not be responsible for, and the
Borrower's reimbursement obligations hereunder shall not be affected by, among
other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee. The Agent shall not be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors,
omissions, interruptions or delays caused by the Agent's gross negligence or
willful misconduct. The Borrower agrees that any action taken or omitted by the
Agent under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of care specified in the Uniform Customs and
Practices for Documentary Credits as the same may be amended from time to time,
shall be binding on the Borrower and shall not result in any liability of the
Agent to the Borrower.
(f) In the event that any Letters of Credit are in effect at the time
of an acceleration of the maturity of the Loans pursuant to ss.12.1, the amounts
which shall thereupon become immediately due and payable by the Borrower shall
include a sum equal to the aggregate stated amount of such then effective
Letters of Credit. Such sum shall be deposited in a cash collateral account to
be opened by the Agent which shall be under the sole dominion and control of the
Agent. The Borrower hereby grants to the Agent, for the benefit of the Lenders,
as security for the Obligations a first priority security interest in such cash
collateral account and all deposits at any time therein and the proceeds thereof
and the Borrower shall execute and deliver such documents and take all actions
as may be required to create and maintain a valid and perfected first priority
Lien on such cash collateral account in favor of the Agent. Borrower
acknowledges that the Agent shall be deemed to be in control of such cash
collateral account as required for perfection of said security interest under
Article 9 of the Uniform Commercial Code. Amounts held in such cash collateral
account shall be applied by the Agent on each Drawing Date thereafter to pay any
drafts presented pursuant to the Letters of Credit. After all Letters of Credit
have been fully drawn upon, expired or otherwise terminated, any balance
remaining in such cash collateral account shall be applied in the same manner as
enforcement proceeds under ss.12.4.
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ss.2.10. Competitive Bid Loans. In addition to the Revolving Credit
Loans and Swingline Loans made pursuant to ss.2 hereof, the Borrower may from
time to time request Competitive Bid Loans pursuant to the terms of this
ss.2.10, provided that at no time shall the aggregate principal amount of
Competitive Bid Loans outstanding at any time exceed the lesser of (a) the Total
Commitment minus the Outstanding Obligations or (b) $150,000,000. The Lenders
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept such offers in the manner set forth in this
ss.2.10.
(a) The obligation of the Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at the sum
of the Competitive Bid Margin plus the applicable LIBOR Rate accrued thereon,
shall be evidenced by this Credit Agreement and by individual loan accounts (the
"Competitive Bid Loan Accounts" and individually, a "Competitive Bid Loan
Account") maintained by the Agent on its books for each of the Lenders, it being
the intention of the parties hereto that the Borrower's obligations with respect
to Competitive Bid Loans are to be evidenced only as stated herein and not by
separate promissory notes and shall hereby constitute an absolute promise to pay
when due, without notice, demand, presentment or setoff.
(b) The Borrower irrevocably authorizes the Agent to make or
cause to be made, in connection with a Borrowing Date of any Competitive Bid
Loan or at the time of receipt of any payment of principal on the applicable
Lender's Competitive Bid Loan Account an appropriate notation, reflecting the
making of the Competitive Bid Loan or the receipt of such payment. The
outstanding amount of the Competitive Bid Loans set forth on the Agent's
records, as applicable, shall be prima facie evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to record, or any error
in so recording, any such amount shall not limit or otherwise affect the
obligations of the Borrower hereunder to make payments of principal of or
interest on any Competitive Bid Loan when due.
(c) When the Borrower wishes to request offers to make
Competitive Bid Loans under this ss.2.10, it shall transmit to the Agent by
facsimile a Competitive Bid Quote Request substantially in the form of Exhibit H
hereto (a "Competitive Bid Quote Request") so as to be received no later than
11:00 a.m. (Boston time) four (4) Business Days prior to the requested Borrowing
Date, specifying:
(A) the requested Borrowing Date (which must be a
Business Day);
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(B) the aggregate amount of such Competitive Bid
Loans, which shall be $5,000,000 or
a larger multiple of $1,000,000; and
(C) the duration of the Interest Period applicable
thereto, subject to the provisions
of the definition of Interest Period;
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No new Competitive
Bid Quote Request shall be given until the Borrower has notified the Agent of
its acceptance or non-acceptance of the Competitive Bid Quotes relating to any
outstanding Competitive Bid Quote Request.
(d) Promptly upon receipt of a Competitive Bid Quote Request,
the Agent shall send to the Lenders by telecopy or facsimile transmission an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit I
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes in accordance with this ss.2.10.
(e) Each Lender may, but shall be under no obligation to,
submit a Competitive Bid Quote containing an offer or offers to make Competitive
Bid Loans in response to any Competitive Bid Quote Request. Each Competitive Bid
Quote must comply with the requirements of this ss.2.10 (e) and must be
submitted to the Agent by facsimile transmission not later than 10:00 a.m.
(Boston time) on the third LIBOR Business Day prior to the proposed Borrowing
Date, provided that Competitive Bid Quotes may be submitted by the Agent in its
capacity as a Lender only if it submits its Competitive Bid Quote to the
Borrower not later than one hour prior to the deadline for the other Lenders.
Subject to the provisions of ss.ss.10 and 11 hereof, any Competitive Bid Quote
so made shall be irrevocable except with the written consent of the Agent given
on the instructions of the Borrower.
(f) Each Competitive Bid Quote shall be in substantially the
form of Exhibit J hereto and shall in any case specify:
(i) the proposed Borrowing Date;
(ii) the principal amount of the Competitive Bid Loan
for which each proposal is
being made, which principal amount (w) may be greater than or less than the
Commitment of the quoting Lender, (x) must be $1,000,000 or a larger multiple of
$500,000, (y) may not exceed the aggregate principal amount of Competitive Bid
Loans for which offers were requested and (z) may be subject to an aggregate
limitation as to the principal amount of Competitive Bid Loans for which offers
being made by such quoting Lender may be accepted;
(iii) the Interest Periods for which Competitive Bid
Quotes are being submitted;
(iv) the margin above or below the applicable LIBOR
Rate (the "Competitive Bid
Margin") offered for each such Competitive Bid Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted from
such LIBOR Rate; and
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(v) the identity of the quoting Lender.
A Competitive Bid Quote may include up to five (5) separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(g) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit J
hereto;
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable
Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in ss.2.10 (e)
hereof.
(h) The Agent shall promptly notify the Borrower of the terms
(a) of any Competitive Bid Quote submitted by a Lender that is in accordance
with ss.2.10 (e) and (b) of any Competitive Bid Quote that amends, modifies or
is otherwise inconsistent with a previous Competitive Bid Quote submitted by
such Lender with respect to the same Competitive Bid Quote Request. Any such
subsequent Competitive Bid Quote shall be disregarded by the Agent unless such
subsequent Competitive Bid Quote is submitted solely to correct a manifest error
in such former Competitive Bid Quote and was received by the Agent within the
time period required in ss.2.10 (e) for receipt of Competitive Bid Quotes. The
Agent's notice to the Borrower shall specify (i) the aggregate principal amount
of Competitive Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Quote Request, (ii) the
respective principal amounts and Competitive Bid Margins so offered, and the
identity of the respective Lenders submitting such offers, and (iii) if
applicable, limitations on the aggregate principal amount of Competitive Bid
Loans for which offers in any single Competitive Bid Quote may be accepted.
(i) Not later than 4:00 p.m. (Boston time) on the third
Business Day prior to the proposed Borrowing Date, the Borrower shall notify the
Agent of its acceptance or non-acceptance of each Competitive Bid Quote in
substantially the form of Exhibit K hereto. The Borrower may accept any
Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each
Competitive Bid Loan may not exceed the
applicable amount set forth in the related Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the
basis of ascending Competitive Bid
Margins, and
(iii) the Borrower may not accept any offer that is
described in ss.2.10 (g) or that
otherwise fails to comply with the requirements of this Agreement.
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The Agent shall promptly notify each Lender which submitted a Competitive Bid
Quote of the Borrower's acceptance or non-acceptance thereof. At the request of
any Lender which submitted a Competitive Bid Quote, the Agent will promptly
notify all Lenders which submitted Competitive Bid Quotes of the aggregate
principal amount of, and the range of Competitive Bid Margins of, the accepted
Competitive Bid Loans for each requested Interest Period.
(j) If offers are made by two (2) or more Lenders with the
same Competitive Bid Margin for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest Period,
the principal amount of Competitive Bid Loans in respect of which such offers at
such Competitive Bid Margin are accepted shall be allocated by the Agent among
such Lenders as nearly as possible (in such multiples, not less than $1,000,000,
as the Agent may deem appropriate) in proportion to the aggregate principal
amounts of such offers. Determination by the Agent of the amounts of Competitive
Bid Loans shall be conclusive in the absence of manifest error.
(k) If, on or prior to the Borrowing Date of any Competitive
Bid Loan, the Total Commitment has not terminated in full and if, on such
Borrowing Date, the applicable conditions of ss.ss.10 and 11 hereof are
satisfied, and the Agent shall have received a Compliance Certificate, the
Lender or Lenders whose offers the Borrower has accepted will fund each
Competitive Bid Loan so accepted. Not later than 1:00 p.m. (Boston time) on such
Borrowing Date, each such Lender or Lenders will make available to the Agent, at
the Agent's Head Office, in immediately available funds, the amount of such
Lender's Competitive Bid Loans. Upon receipt from each such Lender of such
amount, the Agent will make available to the Borrower the aggregate amount of
such Loans made available to the Agent by the Lenders.
(l) The principal of each Competitive Bid Loan shall become
absolutely due and payable by the Borrower on the last day of the Interest
Period relating thereto, and the Borrower hereby absolutely and unconditionally
promises to pay to the Agent for the account of the relevant Lenders at or
before 1:00 p.m. (Boston time) on the last day of the Interest Periods relating
thereto the principal amount of all such Competitive Bid Loans, plus interest
thereon at the sum of the applicable Competitive Bid Margin specified in the
applicable Competitive Bid Quotes plus the applicable LIBOR Rate. Interest on
the Competitive Bid Loans shall be payable (a) on the last day of the applicable
Interest Periods, and if any such Interest Period is longer than three months,
also on the last day of the third month following the commencement of such
Interest Period, and (b) on the Maturity Date for all Loans. Subject to the
terms of this Credit Agreement, the Borrower may make Competitive Bid Quote
Requests with respect to new borrowings of any amounts so repaid prior to the
Maturity Date. The provisions of ss.2.6 shall not apply to Competitive Bid
Loans.
ss.3. REPAYMENT OF THE LOANS.
ss.3.1. Maturity. The Borrower and the Co-Borrowers, jointly and
severally, unconditionally promise to pay on the Maturity Date, and there shall
become absolutely due and payable on the Maturity Date, all of the Loans
outstanding on such date, together with any and all accrued and unpaid interest
and charges thereon. Provided that no Default or Event of Default has occurred
and is continuing (either at the time of exercise of the option or at the
original Maturity Date), the Borrower shall have one (1) option to extend the
Maturity Date for one (1) year by written notice to the Agent not earlier than
ninety (90) days prior to the original Maturity Date and not later than thirty
(30) days prior to the original Maturity Date. Such written notice must be
accompanied by payment to the Agent of an extension fee at the rate of 0.25% of
the Total Commitment, which fee shall be distributed by the Agent to each Lender
in accordance with such Lender's respective Commitment.
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ss.3.2. Mandatory Repayments of Loan. If at any time the sum of the
Outstanding Obligations exceeds the Maximum Credit Amount, then the Borrower (or
one of the Co-Borrowers) shall immediately pay the amount of such excess to the
Agent for the respective accounts of the Lenders for application to the Loans.
If no Event of Default is then existing, the Borrower may designate which Loans
are to be repaid therewith. The Borrower shall repay Swingline Loans on or
before the date required under ss.2.8. The Borrower shall repay Competitive Bid
Loans on or before the date required under ss.2.10 (l).
ss.3.3. Optional Repayments of Loans. The Borrower shall have the
right, at its election, to repay the outstanding amount of the Loans, as a whole
or in part, on any Business Day, without penalty or premium; provided that the
full or partial prepayment of the outstanding amount of any LIBOR Rate Loans
made pursuant to this ss.3.3 may be made only on the last day of the Interest
Period relating thereto, except as set forth below in this ss.3.3. The Borrower
shall give the Agent prior written notice of any prepayment pursuant to this
ss.3.3 no later than 10:00 a.m., Boston time, on (i) the same Business Day as
prepayment of any Prime Rate Loans, or (ii) the day which is two (2) LIBOR
Business Days prior to any proposed repayment of any LIBOR Rate Loans,
specifying the proposed date of payment of Loans and the principal amount to be
paid. The Agent shall promptly notify each Lender of the principal amount of
such payment to be received by such Lender. Each such partial prepayment of the
Loans shall be in an integral multiple of $1,000,000 and, to the extent
requested by the Agent, shall be accompanied by the payment of all charges
outstanding on all Loans and of accrued interest on the principal repaid to the
date of payment. The principal payments so received shall be applied first to
the principal of Swingline Loans, next to the principal of Prime Rate Loans
other than Swingline Loans and then to the principal of LIBOR Rate Loans.
Notwithstanding anything contained herein to the contrary, the Borrower may make
a full or partial prepayment of a LIBOR Rate Loan on a date other than the last
day of the Interest Period relating thereto, if all optional prepayments (in
whole or in part) on such Loans shall be accompanied by, and the Borrower hereby
promises to pay, a prepayment fee in an amount determined by the Agent in the
following manner:
(a) LIBOR Prepayment Fee. Borrower acknowledges that
prepayment or acceleration of a LIBOR Rate Loan during an Interest Period shall
result in the Lenders incurring additional costs, expenses and/or liabilities
and that it is extremely difficult and impractical to ascertain the extent of
such costs, expenses and/or liabilities. (For all purposes of this Section, any
Loan not being made as a LIBOR Rate Loan in accordance with the Loan Request
therefor, as a result of Borrower's cancellation thereof, shall be treated as if
such LIBOR Rate Loan had been prepaid.) Therefore, on the date a LIBOR Rate Loan
is prepaid or the date all sums payable hereunder become due and payable, by
acceleration or otherwise ("Prepayment Date"), Borrower will pay to Agent, for
the account of each Lender, (in addition to all other sums then owing), an
amount ("LIBOR Prepayment Fee") determined by the Agent as follows: The current
rate for United States Treasury securities (bills on a discounted basis shall be
converted to a bond equivalent) with a maturity date closest to the end of the
Interest Period as to which prepayment is made, shall be subtracted from the
interest rate applicable to the LIBOR Rate Loan being prepaid. If the result is
zero or a negative number, there shall be no LIBOR Prepayment Fee. If the result
is a positive number, then the resulting percentage shall be multiplied by the
amount of the LIBOR Rate Loan being prepaid. The resulting amount shall be
divided by 360 and multiplied by the number of days remaining in the Interest
Period as to which the prepayment is being made. The resulting amount shall be
the LIBOR Prepayment Fee.
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(b) Upon the written notice to Borrower from Agent, Borrower
shall immediately pay to Agent, for the account of the Lenders, the LIBOR
Prepayment Fee. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the parties hereto.
(c) Borrower understands, agrees and acknowledges the
following: (i) no Lender has any obligation to purchase, sell and/or match funds
in connection with the use of the LIBOR Rate as a basis for calculating the rate
of interest on a LIBOR Rate Loan; (ii) the LIBOR Rate is used merely as a
reference in determining such rate; and (iii) Borrower has accepted the LIBOR
Rate as a reasonable and fair basis for calculating such rate and a LIBOR
Prepayment Fee. Borrower further agrees to pay the LIBOR Prepayment Fee, if any,
whether or not a Lender elects to purchase, sell and/or match funds.
(d) Except with the prior consent of the Agent, the Borrower
shall not prepay any Loans hereunder while there are outstanding Multi-Currency
Loans that are denominated in Dollars. Notwithstanding the foregoing, when an
Event of Default has occurred and is continuing, payments shall be applied
between the Loans hereunder and the Multi-Currency Loans as provided in the
Intercreditor Agreement of even date herewith among the Lenders and the Agent.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.4.1. Fees. On the Effective Date, the Borrower shall pay to Fleet
and Arranger the fees in the amounts specified in the Fee Agreement among Fleet,
the Arranger and the Borrower dated January 14, 2003. Fleet shall be responsible
for the upfront fees which it has agreed to pay to the other Lenders, as set
forth in the commitment letters from such other lenders to the Arranger and
accepted by the Arranger.
ss.4.2. Facility Fee. The Borrower shall pay to the Agent for the
accounts of the Lenders a Facility Fee equal to the sum of each Lender's
Commitment multiplied by the Applicable Facility Fee per annum. The Facility Fee
shall be payable on the basis of the applicable annual rate quarterly in arrears
on or before the first Business Day of each calendar quarter for the immediately
preceding calendar quarter commencing on the first such date following the date
hereof, with a final payment on the Maturity Date or any earlier date on which
the Commitments shall terminate.
ss.4.3. Funds for Payments.
(a) All payments of principal, interest, closing fees,
Facility Fees and any other amounts due hereunder (other than as provided in
ss.2.2(b), ss.4.1, ss.4.5 and ss.4.6) or under any of the other Loan Documents,
and all prepayments, shall be made to the Agent, for the respective accounts of
the Lenders, at the Agent's Head Office, in each case in Dollars in immediately
available funds.
35
(b) All payments by the Borrower hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory liens, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower shall pay
to the Agent, for the account of the Lenders or (as the case may be) the Agent,
on the date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be necessary to
enable the Lenders or the Agent to receive the same net amount which the Lenders
or the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
ss.4.4. Computations. All computations of interest on the Loans and of
other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and such extension of time shall
be included in computing interest and fees in connection with such payment. The
outstanding amount of the Loans as reflected on the Records from time to time
shall (absent manifest error) be considered correct and binding on the Borrower
unless within thirty (30) Business Days after receipt by the Agent or any of the
Lenders from Borrower of any notice by the Borrower of such outstanding amount,
the Agent or such Lender shall notify the Borrower to the contrary.
ss.4.5. Additional Costs, Etc. If any present or future applicable law
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Lender's Commitment or the Loans
(other than taxes based upon or measured by the income or profits of such Lender
or the Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable to any
Lender under this Agreement or the other Loan Documents, or
36
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or Loans by, or commitments of an office of
any Lender, or
(d) impose on any Lender any other conditions or requirements
with respect to this Agreement, the other Loan Documents, the Loans, the Total
Commitment, or any class of Loans or commitments of which any of the Loans or
the Total Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to such Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such Lender's
Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to such Lender or the Agent hereunder on account of the
Commitments or any of the Loans, or
(iii) to require such Lender or the Agent to make any payment
or to forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by such Lender or the
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Lender
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Lender or the Agent, to the
extent permitted by law, such additional amounts as will be sufficient to
compensate such Lender or the Agent for such additional cost, reduction, payment
or foregone interest or other sum.
ss.4.6. Capital Adequacy. If any present or future law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) or the interpretation thereof by a court or governmental authority
with appropriate jurisdiction affects the amount of capital required or expected
to be maintained by banks or bank holding companies and any Lender or the Agent
determines that the amount of capital required to be maintained by it is
increased by or based upon the existence of the Loans made or deemed to be made
pursuant hereto, then such Lender or the Agent may notify the Borrower of such
fact, and the Borrower shall pay to such Lender or the Agent from time to time
on demand, as an additional fee payable hereunder, such amount as such Lender or
the Agent shall determine in good faith and certify in a notice to the Borrower
to be an amount that will adequately compensate such Lender or the Agent in
light of these circumstances for its increased costs of maintaining such
capital. Each Lender and the Agent shall allocate such cost increases among its
customers in good faith and on an equitable basis.
ss.4.7. Certificate. A certificate setting forth any additional
amounts payable pursuant to ss.ss.4.5 or 4.6 and a brief explanation of such
amounts which are due, submitted by any Lender or the Agent to the Borrower,
shall be prima facie evidence that such amounts are due and owing.
37
ss.4.8. Indemnity. In addition to the other provisions of this
Agreement regarding any such matters, the Borrower agrees to indemnify each
Lender and to hold each Lender harmless from and against any loss, cost or
reasonable expense (including loss of anticipated profits) that such Lender may
sustain or incur as a consequence of (a) a default by the Borrower in payment of
the principal amount of or any interest on any LIBOR Rate Loans as and when due
and payable, including any such loss or expense caused by Borrower's breach or
other default and arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain its LIBOR Rate Loans, (b) a
default by the Borrower in making a borrowing or conversion after the Borrower
has given (or is deemed to have given) a Loan Request or a Conversion Request,
(c) the making of any payment of a LIBOR Rate Loan or the making of any
conversion of a LIBOR Rate Loan to a Prime Rate Loan on a day that is not the
last day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Lender to lenders of funds obtained by it in
order to maintain any such LIBOR Rate Loan and (d) any failure by the Borrower
to prepay a LIBOR Loan on the date specified in a prepayment notice given by the
Borrower.
ss.4.9. Default Interest and Late Charges. During any period when an
Event of Default has occurred and is continuing, or after the Maturity Date or
after judgment has been rendered on any Note, Borrower's right to select LIBOR
Loans shall cease and the unpaid principal of all Loans shall, at the option of
each Lender bear interest at a rate which is four (4) percentage points per
annum greater than that which would otherwise be applicable to Prime Rate Loans.
If the entire amount of any required principal and/or interest is not paid in
full within ten (10) days after the same is due, Borrower shall pay to the Agent
a late fee equal to five percent (5%) of the required payment.
ss.4.10. Inability to Determine LIBOR Rate. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall determine that adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine the rate of interest
to be applicable to any LIBOR Rate Loan during any Interest Period, the Agent
shall forthwith give notice of such determination (which shall be conclusive and
binding on the Borrower) to the Borrower. In such event (a) any Loan Request
with respect to LIBOR Rate Loans shall be automatically withdrawn and shall be
deemed a request for Prime Rate Loans, (b) each LIBOR Rate Loan will
automatically, on the last day of the then current Interest Period thereof,
become a Prime Rate Loan, and (c) the obligations of the Lenders to make LIBOR
Rate Loans shall be suspended until the Agent determines that the circumstances
giving rise to such suspension no longer exist, whereupon the Agent shall so
notify the Borrower.
ss.4.11. Illegality. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Rate Loans, such Lender shall forthwith give notice of
such circumstances to the Borrower and thereupon (a) the Commitment of such
Lender to make LIBOR Rate Loans or convert Loans of another Type to LIBOR Rate
Loans shall forthwith be suspended and (b) the LIBOR Rate Loans then outstanding
shall be converted automatically to Prime Rate Loans on the last day of each
Interest Period applicable to such LIBOR Rate Loans or within such earlier
period as may be required by law. The Borrower hereby agrees promptly to pay to
the Agent for the account of such Lender, upon demand, any additional amounts
necessary to compensate such Lender for any costs incurred by such Lender in
making any conversion in accordance with this ss.4.11, including any interest or
fees payable by such Lender to lenders of funds obtained by it in order to make
or maintain its LIBOR Rate Loans hereunder. If, at any time, the rate of
interest, together with all amounts which constitute interest and which are
reserved, charged or taken by the Lenders as compensation for fees, services or
expenses incidental to the making, negotiating or collection of the Loans or the
other Obligations, shall be deemed by any competent court of law, governmental
38
agency or tribunal to exceed the maximum rate of interest permitted to be
charged by any Lender to Borrower under applicable law, then, during such time
as such rate of interest would be deemed excessive, that portion of each sum
paid attributable to that portion of such interest rate that exceeds the maximum
rate of interest so permitted shall be deemed a voluntary prepayment of
principal without penalty (including, without limitation, prepayment fees
required pursuant to ss.4.3(a) hereof). As used herein, the term "applicable
law" shall mean the law in effect as of the date hereof, provided, however, that
in the event there is a change in the law which results in a higher permissible
rate of interest, then this Agreement and the Notes shall be governed by such
new law as of its effective date.
ss.4.12. Replacement of Lenders. If any of the Lenders shall make a
notice or demand upon the Borrower pursuant to ss.4.5, ss.4.6, or ss.4.11 based
on circumstances or laws which are not generally applicable to the Lenders
organized under the laws of the United States or any State thereof, the Borrower
shall have the right to replace such Lender with an Eligible Assignee selected
by the Borrower and approved by the Agent. In such event the assignment shall
take place on a date set by the Agent at which time the assigning Lender and the
Eligible Assignee shall enter into an Assignment and Acceptance as contemplated
by ss.18.1 (and clause (d) thereof shall not be applicable) and the assigning
Lender shall receive from the Eligible Assignee or the Borrower a sum equal to
the outstanding principal amount of the Loans owed to the assigning Lender
together with accrued interest thereon plus the accrued Facility Fee under
ss.4.2 allocated to the assigning Lender, plus all other amounts then due to the
assigning Lender hereunder.
39
ss.5. UNENCUMBERED PROPERTIES; NO LIMITATION ON RECOURSE.
ss.5.1. Unencumbered Properties and Unencumbered Development
Properties. The Borrower represents and warrants that each of the Real Estate
Assets listed on Schedule 1.1 will on the Effective Date either (i) satisfy all
of the conditions set forth in the definition of Unencumbered Property or (ii)
satisfy all of the conditions set forth in the definition of Unencumbered
Development Property. From time to time during the term of this Agreement
additional Real Estate Assets may become Unencumbered Properties or Unencumbered
Development Properties and certain Real Estate Assets which previously satisfied
the conditions set forth in the definition of Unencumbered Property or in the
definition of Unencumbered Development Property may cease to be Unencumbered
Properties or Unencumbered Development Properties by virtue of property
dispositions, creation of Liens or other reasons. There shall be attached to
each Compliance Certificate delivered pursuant to ss.7.4(d) or ss.7.13 an
updated listing of the Unencumbered Properties and Unencumbered Development
Properties relied upon by the Borrower in computing the Value of All
Unencumbered Properties and the Unencumbered Net Operating Income stated in such
Compliance Certificate. Compliance Certificates delivered pursuant to ss.2.5(a),
ss.2.9(b), ss.2.10 (k) or ss.11.1 may, at Borrower's option, include an updated
listing of the Unencumbered Properties and Unencumbered Development Properties
and shall include such updated listing whenever a redetermination of the Value
of All Unencumbered Properties based on such an updated listing would result in
a material decrease (from that shown on the most recently delivered Compliance
Certificate) in the Value of All Unencumbered Properties by virtue of property
dispositions, creation of Liens or other reasons.
ss.5.2. Waivers by Requisite Lenders. If any Real Estate Asset fails
to satisfy any of the requirements contained in the definition of Unencumbered
Property or the definition of Unencumbered Development Property then the
applicable Real Estate Asset may nevertheless be deemed to be Unencumbered
Property or an Unencumbered Development Property hereunder if the Requisite
Lenders grant the necessary waivers and vote to accept such Real Estate Asset as
an Unencumbered Property or an Unencumbered Development Property.
ss.5.3. Rejection of Unencumbered Properties and Unencumbered
Development Properties. If at any time the Agent determines that any Real Estate
Asset listed as an Unencumbered Property or an Unencumbered Development Property
by the Borrower does not satisfy all of the requirements of the definition of
Unencumbered Property or of Unencumbered Development Property, as applicable (to
the extent not waived by the Requisite Lenders pursuant to ss.5.2) it may reject
an Unencumbered Property or an Unencumbered Development Property by notice to
the Borrower and if the Agent so requests the Borrower shall revise the
applicable Compliance Certificate to reflect the resulting change in the Value
of All Unencumbered Properties and the Unencumbered Net Operating Income.
ss.5.4. Change in Circumstances. If at any time during the term of
this Agreement Borrower becomes aware that any of the representations contained
in ss.6 are no longer accurate with respect to any Unencumbered Property or any
Unencumbered Development Property, it will promptly so notify the Agent and
either request a waiver pursuant to ss.5.2 or confirm that such Real Estate
Asset is no longer an Unencumbered Property or an Unencumbered Development
Property. If any waiver so requested is not granted by the Requisite Lenders
within ten (10) Business Days the Agent shall reject the applicable Unencumbered
Property or Unencumbered Development Property pursuant to ss.5.3.
40
ss.5.5. No Limitation on Recourse. The Obligations are full recourse
obligations of the Borrower and the Co-Borrowers and, to the extent provided in
the Guaranty, of the Company, and all of their respective Real Estate Assets and
other properties shall be available for the indefeasible payment in full in cash
and performance of the Obligations. Notwithstanding anything to the contrary
contained herein, the trustees of Liberty Property Trust shall have no personal
liability of any nature under this document. The Agent and the Lenders shall
look solely to the assets of Liberty Property Trust to satisfy any liability or
recourse against Liberty Property Trust hereunder.
ss.5.6. Additional Co-Borrowers. If Borrower desires that a Real Estate
Asset owned by a Related Company which is not previously a Co-Borrower become an
Unencumbered Property or an Unencumbered Development Property, then provided
that the applicable Related Company is formed under the laws of one of the
United States and is at least 85% owned by Borrower, such Related Company may
become a Co-Borrower upon delivery to the Agent of the following, all in form
and substance satisfactory to the Agent: (a) a Joinder Agreement in
substantially the form of Exhibit L hereto, (b) good standing certificates,
general partner certificates, secretary certificates, opinions of counsel and
such other documents as may be reasonably requested by the Agent. The Agent
shall provide copies of said documents to the Lenders.
ss.6. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent and each of the Lenders as follows:
ss.6.1. Authority; Etc.
(a) Organization; Good Standing. The Company (i) is a Maryland
real estate investment trust duly organized, validly existing and in good
standing under the laws of the State of Maryland, (ii) has all requisite power
to own its properties and conduct its business as now conducted and as presently
contemplated, and (iii) to the extent required by law is in good standing as a
foreign entity and is duly authorized to do business in the States in which the
Unencumbered Properties and the Unencumbered Development Properties are located
and in each other jurisdiction where such qualification is necessary except
where a failure to be so qualified in such other jurisdiction would not have a
Materially Adverse Effect. The Borrower is a Pennsylvania limited partnership,
and each Co-Borrower is a Pennsylvania limited partnership or a Pennsylvania
corporation, and each such entity is duly organized, validly existing and in
good standing under the laws of the State of its formation, has all requisite
power to own its properties and conduct its business as presently contemplated
and is duly authorized to do business in the States in which the Unencumbered
Properties and the Unencumbered Development Properties owned by it are located
and in each other jurisdiction where such qualification is necessary except
where a failure to be so qualified in such other jurisdiction would not have a
Material Adverse Effect.
(b) Authorization. The execution, delivery and performance of
this Agreement and the other Loan Documents to which the Borrower or any
Co-Borrower is to become a party and the transactions contemplated hereby and
thereby (i) are within the authority of the Borrower and each such Co-Borrower,
(ii) have been duly authorized by all necessary proceedings on the part of the
41
Borrower, such Co-Borrower and the Company as general partner of Borrower, (iii)
do not conflict with or result in any breach or contravention of any provision
of law, statute, rule or regulation to which the Borrower, any Co-Borrower or
the Company is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower, any Co-Borrower or the Company and (iv) do
not conflict with any provision of the Borrower's partnership agreement, the
Company's declaration of trust, charter documents or bylaws, the partnership
agreement, charter documents or bylaws of any of the Co-Borrowers, or any
agreement (except agreements as to which such a conflict would not result in a
Material Adverse Effect) or other instrument binding upon, the Borrower or the
Company or to which any of their properties are subject. The execution, delivery
and performance of the Guaranty and the other Loan Documents to which the
Company is to become a party and the transactions contemplated hereby and
thereby (i) are within the authority of the Company, (ii) have been duly
authorized by all necessary proceedings on the part of the Company, (iii) do
not conflict with or result in any breach or contravention of any provision of
law, statute, rule or regulation to which the Company is subject or any
judgment, order, writ, injunction, license or permit applicable to the Company
and (iv) do not conflict with any provision of the Company's charter documents
or bylaws, partnership agreement, declaration of trust, or any agreement (except
agreements as to which such a conflict would not result in a Material Adverse
Effect) or other instrument binding upon the Company or to which any of the
Company's properties are subject.
(c) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which the Borrower is or is to become
a party will result in valid and legally binding obligations of the Borrower
enforceable against it in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought. The execution and delivery of the Guaranty and the other Loan
Documents to which the Company is or is to become a party will result in valid
and legally binding obligations of the Company enforceable against the Company
in accordance with the respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors, rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
ss.6.2. Governmental Approvals. The execution, delivery and
performance by the Borrower, the Company and each Co-Borrower of this Agreement
and the other Loan Documents to which the Borrower, the Company or such
Co-Borrower is or is to become a party and the transactions contemplated hereby
and thereby do not require the approval or consent of, or filing with, any
governmental agency or authority other than those already obtained.
ss.6.3. Title to Properties.
42
(a) Either the Borrower or a Co-Borrower holds good and clear
record and marketable fee simple title to the Unencumbered Properties and the
Unencumbered Development Properties, subject to no Liens except for the
Permitted Liens.
(b) Except as indicated on Schedule 6.3 hereto, the Borrower
owns all of the properties reflected in the balance sheet of the Borrower as at
the Balance Sheet Date or acquired since that date (except properties sold or
otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
ss.6.4. Financial Statements. The following financial statements have
been furnished to each of the Lenders.
(a) A balance sheet of the Company as of the Balance Sheet
Date, and a statement of operations and statement of cash flows of the Company
for the fiscal year then ended, a balance sheet of the Borrower as of the
Balance Sheet Date, and a statement of operations and statement of cash flows of
the Borrower for the fiscal year then ended, all accompanied by an auditor's
report prepared without qualification by Ernst & Young LLP. Such balance sheets
and statements of operations and of cash flows have been prepared in accordance
with Generally Accepted Accounting Principles and fairly present the financial
condition of the Borrower and the Company, respectively as at the close of
business on the date thereof and the results of operations and cash flows for
the fiscal year then ended. There are no contingent liabilities of the Borrower
or the Company, respectively, as of such date involving material amounts, known
to the officers of the Company not disclosed in said balance sheet and the
related notes thereto.
(b) A balance sheet and a statement of operations and
statement of cash flows of the Company and a balance sheet and a statement of
operations and statement of cash flows of the Borrower for each of the fiscal
quarters of the Company ended since the Balance Sheet Date for which the Company
has filed form 10-Q with the SEC, which the Company's Responsible Officer
certifies has been prepared in accordance with Generally Accepted Accounting
Principles (except to the extent otherwise described in such Form 10-Q)
consistent with those used in the preparation of the annual audited statements
delivered pursuant to paragraph (a) above and fairly represents the financial
condition of the Company and the Borrower, respectively, as at the close of
business on the dates thereof and the results of operations and of cash flows
for the fiscal quarters then ended (subject to year-end adjustments). There are
no contingent liabilities of the Borrower or the Company as of such dates
involving material amounts, known to the officers of the Company, not disclosed
in such balance sheets and the related notes thereto.
(c) A statement prepared by the Borrower which sets forth the
total Net Operating Income of the Unencumbered Properties for the fiscal quarter
of the Borrower ended on the Balance Sheet Date.
ss.6.5. No Material Changes, Etc. Since the Balance Sheet Date, there
has occurred no material adverse change in the financial condition or assets or
business of the Borrower as shown on or reflected in the balance sheet of the
Borrower as of the Balance Sheet Date, or the statement of income for the fiscal
year then ended, other than changes in the ordinary course of business that have
not had any Material Adverse Effect either individually or in the aggregate.
43
ss.6.6. Franchises, Patents, Copyrights, Etc. The Borrower possesses
all franchises, patents, copyrights, trademarks, trade names, licenses and
permits, and rights in respect of the foregoing, adequate for the conduct of its
business substantially as now conducted without known conflict with any rights
of others, except to the extent the Borrower's failure to possess the same does
not have a Material Adverse Effect.
ss.6.7. Litigation. Except as listed and described on Schedule 6.7
hereto, there are no actions, suits, proceedings or investigations of any kind
pending or, to Borrower's knowledge, threatened against the Borrower, the
Company, any Co-Borrower or any of the Related Companies before any court,
tribunal or administrative agency or board that, if adversely determined, might,
either in any case or in the aggregate, have a Material Adverse Effect or
materially impair the right of the Borrower, the Company, any Co-Borrower or any
of the Related Companies to carry on business substantially as now conducted by
it, or which question the validity of this Agreement or any of the other Loan
Documents, any action taken or to be taken pursuant hereto or thereto, or which
would result in a Lien on any Unencumbered Property or any Unencumbered
Development Property, or which will materially adversely affect the ability of
the Borrower, any Co-Borrower or the Company to pay and perform the Obligations
in the manner contemplated by this Agreement and the other Loan Documents.
ss.6.8. No Materially Adverse Contracts, Etc. Neither the Borrower nor
the Company is subject to any charter, trust or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is expected in the
future to have a Material Adverse Effect. Neither the Borrower nor the Company
is a party to any contract or agreement that has or is expected, in the judgment
of the Company's officers, to have any Material Adverse Effect.
ss.6.9. Compliance With Other Instruments, Laws, Etc. Neither the
Borrower nor the Company is in violation of any provision of the Borrower's
partnership agreement or of the Company's charter documents, by-laws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of substantial penalties or have a Material Adverse Effect.
ss.6.10. Tax Status. Each of the Borrower and the Company (a) has made
or filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, and (b) has
paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim.
ss.6.11. Event of Default. No Default or Event of Default has occurred
and is continuing.
44
ss.6.12. Investment Company Act. Neither the Borrower nor the Company
is an "investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
ss.6.13. Absence of Financing Statements, Etc. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage, equipment
lease, financing lease, option, encumbrance or other document existing, filed or
recorded with any filing records, registry, or other public office, that
purports to cover, affect or give notice of any present or possible future lien
or encumbrance on, or security interest in, any Unencumbered Property or any
Unencumbered Development Property, except Permitted Liens.
ss.6.14. Status of the Company. The Company (i) is a real estate
investment trust as defined in Section 856 of the Code (or any successor
provision thereto), (ii) has not revoked its election to be a real estate
investment trust, (iii) has not engaged in any "prohibited transactions" as
defined in Section 856(b)(6)(iii) of the Code (or any successor provision
thereto), and (iv) for its current "tax year" (as defined in the Code) is, and
for all prior tax years subsequent to its election to be a real estate
investment trust has been, entitled to a dividends paid deduction which meets
the requirements of Section 857 of the Internal Revenue Code. The common stock
of the Company is listed for trading on the New York Stock Exchange.
ss.6.15. Certain Transactions. Except as set forth on Schedule 6. 15
hereto, none of the officers or employees of the Borrower, any Co-Borrower or
the Company are presently a party to any transaction with the Borrower, any
Co-Borrower or the Company (other than for services as employees, officers and
trustees), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
trustee or such employee or, to the knowledge of the Borrower and the Company,
any corporation, partnership, trust or other entity in which any officer,
trustee or any such employee or natural Person related to such officer, trustee
or employee or other Person in which such officer, trustee or employee has a
direct or indirect beneficial interest has a substantial interest or is an
officer or trustee.
ss.6.16. Benefit Plans: Multiemployer Plans: Guaranteed Pension Plans.
As of the date hereof as to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, neither the Borrower nor any ERISA Affiliate maintains
or contributes to any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan, except as may be set forth on Schedule 6.16. To the extent that
Borrower or any ERISA Affiliate hereafter maintains or contributes to any
Employee Benefit Plan or Guaranteed Pension Plan, it shall at all times do so in
compliance with ss.7.17 hereof.
ss.6.17. Regulations U and X. No portion of any Loan is to be used for
the purpose of purchasing or carrying any "margin security" or "margin stock" as
such terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
ss.6.18. Environmental Compliance. The Borrower has caused Phase I
environmental assessments to be conducted with respect to the Real Estate
Assets. Based on the information contained in the reports received by Borrower
with respect to said environmental assessments, Borrower makes the following
representations and warranties:
45
(a) Except as may be set forth on Schedule 6.18, to the best
of Borrower's knowledge none of the Borrower, the Company, any Co-Borrower, any
of the Related Companies or any operator of the Real Estate or any portion
thereof, or any operations thereon is in violation, or alleged material
violation, of any judgment, decree, order, law, license, rule or regulation
pertaining to environmental matters (hereinafter collectively referred to as the
"Environmental Laws"), including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
state or local statute, regulation, ordinance, order or decree relating to
health, safety or the environment, including, without limitation, the
environmental statutes, regulations, orders and decrees of the States in which
any of the Unencumbered Properties or any of the Unencumbered Development
Properties may be located, which violation would have a Material Adverse Effect
or would materially decrease the value of an Unencumbered Property or an
Unencumbered Development Property.
(b) Except as set forth on Schedule 6.18 attached hereto, none
of Borrower, any Co-Borrower, the Company or the Related Companies has received
written notice from any third party including, without limitation any federal,
state or local governmental authority with respect to any of the Unencumbered
Properties or any of the Unencumbered Development Properties or otherwise if the
same would have a Material Adverse Effect, (i) that it has been identified by
the United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that any hazardous
waste, as defined by 42 U.S.C. ss.9601(5), any hazardous substances as defined
by 42 U.S.C. ss.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
ss.9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Materials") which it has generated, transported or disposed of have been found
at any site at which a federal, state or local agency or other third party has
conducted or has ordered that the Borrower, any Co-Borrower, the Company or any
of the Related Companies conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise) arising out of
any third party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Materials.
(c) Except as set forth on Schedule 6.18 attached hereto and
except to the extent the same would neither have a Material Adverse Effect nor
materially decrease the value of an Unencumbered Property or an Unencumbered
Development Property, (i) to the best of Borrower's knowledge no portion of the
Real Estate has been used for the handling, processing, storage or disposal of
Hazardous Materials except in material compliance with applicable Environmental
Laws; and except as set forth on Schedule 6.18, no underground tank or other
underground storage receptacle for Hazardous Materials is located on any portion
of the Real Estate; (ii) in the course of any activities conducted by the
Borrower, any Co-Borrower, the Company, any of the Related Companies or the
operators of any Real Estate, or to the best of Borrower's knowledge, any ground
or space tenants on any Real Estate, no Hazardous Materials have been generated
46
or are being used on the Real Estate except in material compliance with
applicable Environmental Laws; (iii) there has been no present, or to the best
of Borrower's knowledge past, releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, disposing or dumping (a
"Release") or threatened Release of Hazardous Materials on, upon, into or from
any Real Estate; (iv) to the best of Borrower's knowledge, there have been no
Releases on, upon, from or into any real property in the vicinity of any of the
Real Estate which, through soil or groundwater contamination, may have come to
be located on; and (v) to the best of Borrower's knowledge, any Hazardous
Materials that have been generated on any of the Real Estate have been
transported off-site only by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws, which
transporters and facilities have been and are, to the best of the Borrower's
knowledge, operating in material compliance with such permits and applicable
Environmental Laws. Notwithstanding that any representation contained herein may
be limited to the knowledge of the Borrower, any such limitation shall not
affect the covenants specified in ss.7.10 or elsewhere in this Agreement.
(d) None of the Real Estate is or shall be subject to any
applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, solely by virtue of the transactions set
forth herein and contemplated hereby.
ss.6.19. Subsidiaries and Affiliates. The Borrower has no Subsidiaries
except for the Related Companies listed on Schedule 1.3 and does not have an
ownership interest in any entity whose financial statements are not consolidated
with the Borrower's except for the Unconsolidated Entities listed on Schedule
1.3. Except as set forth on Schedule 6.19: (a) the Company is not a partner in
any partnership other than Borrower and is not a member of any limited liability
company and (b) the Company owns no material assets other than its partnership
interest in Borrower.
ss.6.20. Loan Documents. All of the representations and warranties of
the Borrower, any Co-Borrower or the Company made in the other Loan Documents or
any document or instrument delivered or to be delivered to the Agent or the
Lenders pursuant to or in connection with any of such Loan Documents are true
and correct in all material respects.
ss.6.21. Buildings on the Unencumbered Properties. Except as set forth
on Schedule 6.21, to the best of Borrower's knowledge there are no material
defects in the roof, foundation, structural elements and masonry walls of the
Buildings on the Unencumbered Properties or their heating, ventilating and air
conditioning, electrical, sprinkler, plumbing or other mechanical systems which
would materially decrease the value of such Unencumbered Property.
ss.7. AFFIRMATIVE COVENANTS OF THE BORROWER. Borrower (and, to the
extent provided herein, each Co-Borrower) covenants and agrees as follows, so
long as any Loan or Note is outstanding or the Lenders have any obligations to
make Loans:
47
ss.7.1. Punctual Payment. The Borrower and the Co-Borrowers, jointly
and severally, unconditionally agree to duly and punctually pay the principal
and interest on the Loans and all other amounts provided for in the Notes, this
Agreement, and the other Loan Documents all in accordance with the terms of the
Notes, this Agreement and the other Loan Documents.
ss.7.2. Maintenance of Office. The Borrower will maintain its chief
executive office in Malvern, Pennsylvania or at such other place in the United
States Of America as the Borrower shall designate upon written notice to the
Agent to be delivered within fifteen (15) days of such change, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
ss.7.3. Records and Accounts. The Borrower will keep true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with Generally Accepted Accounting Principles.
ss.7.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrower, the audited
balance sheets of the Borrower and of the Company at the end of such year, and
the related audited statements of operations and statements of cash flows and
Funds From Operations and taxable income for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with Generally
Accepted Accounting Principles on a consolidated basis including the Borrower
and the Related Companies, and accompanied by an auditor's report prepared
without qualification by Ernst & Young LLP or by another independent certified
public accountant reasonably acceptable to the Agent; provided, however, that
for so long as the Borrower and the Company are filing form 10-K with the SEC,
the delivery of a copy thereof pursuant to paragraph (e) of this ss.7.4 shall be
deemed to satisfy this paragraph (a);
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters of the Borrower, copies of the unaudited balance sheets of the Borrower
and of the Company as at the end of such quarter, and the related unaudited
statements of operations and statements of Funds From Operations and estimated
taxable income for the portion of the Borrower's fiscal year then elapsed, all
in reasonable detail and prepared in accordance with Generally Accepted
Accounting Principles, together with a certification by the principal financial
or accounting officer of the Company that the information contained in such
financial statements fairly presents the financial position of the Borrower and
of the Company on the date thereof (subject to year-end adjustments); provided,
however, that for so long as the Borrower and the Company are filing form 10-Q
with the SEC, the delivery of a copy thereof pursuant to paragraph (e) of this
ss.7.4 shall be deemed to satisfy this paragraph (b);
(c) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters and not later than ninety (90) days after the end of the last fiscal
quarter of each fiscal year of the Borrower, copies of a statement of the Net
Operating Income for such fiscal quarter for the Unencumbered Properties,
prepared on a basis consistent with the statements furnished pursuant to ss.6.4
(c), and certified by a Responsible Officer of the Company and, at the time of
the annual financial statements referred to in subsection (a) above, and, if
requested by the Agent, at the time of quarterly financial statements referred
to in subsection (b) above, a statement setting forth the Net Operating Income
for such fiscal quarter for each Unencumbered Property listed by address;
48
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement in the form
of Exhibit C hereto signed by a Responsible Officer of the Company and setting
forth in reasonable detail computations evidencing compliance with the covenants
contained herein and (if applicable) reconciliations to reflect changes in
Generally Accepted Accounting Principles since the Balance Sheet Date;
(e) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Company, copies of the
Form 10-K statement filed with the Securities and Exchange Commission ("SEC")
for such fiscal year, and as soon as practicable, but in any event not later
than forty-five (45) days after the end of each fiscal quarter, copies of the
Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in
either case if the SEC has granted an extension for the filing of such
statements, Borrower shall deliver such statements to the Agent simultaneously
with the filing thereof with the SEC;
(f) promptly following the filing or mailing thereof, copies
of all other material of a financial nature filed with the SEC or sent to the
shareholders of the Company or to the limited partners of the Borrower and
copies of all corporate press releases promptly upon the issuance thereof;
(g) from time to time such other financial data and
information as the Agent may reasonably request including, without limitation,
financial statements of any Unconsolidated Entities.
ss.7.5. Notices.
(a) Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting a Default or an Event of Default under this
Agreement) under any note, evidence of Indebtedness, indenture or other
obligation to which or with respect to which the Borrower, any Co-Borrower, the
Company or any of the Related Companies is a party or obligor, whether as
principal or surety, and if the principal amount thereof exceeds $5,000,000, and
such default would permit the holder of such note or obligation or other
evidence of Indebtedness to accelerate the maturity thereof, the Borrower shall
forthwith give written notice thereof to the Agent and each of the Lenders,
describing the notice or action and the nature of the claimed default.
(b) Environmental Events. The Borrower will promptly notify
the Agent in writing of any of the following events: (i) upon Borrower's
obtaining knowledge of any violation of any Environmental Law regarding an
Unencumbered Property or an Unencumbered Development Property or any Real Estate
or Borrower's operations which violation could have a Material Adverse Effect;
(ii) upon Borrower's obtaining knowledge of any potential or known Release, or
49
threat of Release, of any Hazardous Substance at, from, or into an Unencumbered
Property or an Unencumbered Development Property or any Real Estate which it
reports in writing or is reportable by it in writing to any governmental
authority and which is material in amount or nature or which could materially
affect the value of such Unencumbered Property or Unencumbered Development
Property or which could have a Material Adverse Effect; (iii) upon Borrower's
receipt of any notice of violation of any Environmental Laws or of any Release
or threatened Release of Hazardous Substances, including a notice or claim of
liability or potential responsibility from any third party (including without
limitation any federal, state or local governmental officials) and including
notice of any formal inquiry, proceeding, demand, investigation or other action
with regard to (A) Borrower's or any Person's operation of an Unencumbered
Property or an Unencumbered Development Property or any Real Estate if the same
would have a Material Adverse Effect, (B) contamination on, from or into an
Unencumbered Property or an Unencumbered Development Property or any Real Estate
if the same would have a Material Adverse Effect, or (C) investigation or
remediation of off-site locations at which Borrower or any of its predecessors
are alleged to have directly or indirectly disposed of Hazardous Substances; or
(iv) upon Borrower's obtaining knowledge that any expense or loss has been
incurred by such governmental authority in connection with the assessment,
containment, removal or remediation of any Hazardous Substances with respect to
which Borrower, any Co-Borrower, the Company or any of the Related Companies may
be liable or for which a lien may be imposed on an Unencumbered Property or an
Unencumbered Development Property.
(c) Notification of Liens Against Unencumbered Properties and
Unencumbered Development Properties or Other Material Claims. The Borrower will,
immediately upon becoming aware thereof, notify the Agent in writing of any
Liens (except Permitted Liens) placed upon or attaching to any Unencumbered
Properties or any Unencumbered Development Properties or of any other setoff,
claims (including environmental claims), withholdings or other defenses which
could have a Material Adverse Effect.
(d) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within fifteen (15) days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting any of the Unencumbered Properties or any of the
Unencumbered Development Properties or affecting Borrower, any Co-Borrower, the
Company or any of the Related Companies or to which the Borrower, any
Co-Borrower, the Company or any of the Related Companies is or is to become a
party involving an uninsured claim (or as to which the insurer reserves rights)
against the Borrower, any Co-Borrower, the Company or any of the Related
Companies that at the time of giving of notice could reasonably be expected to
have a Materially Adverse Effect, and stating the nature and status of such
litigation or proceedings. The Borrower will give notice to the Agent, in
writing, in form and detail satisfactory to the Agent, within ten (10) days of
any judgment not covered by insurance, final or otherwise, against the Borrower
in an amount in excess of $1,000,000.
(e) Notice of Rating Changes. The Borrower will immediately
notify the Agent in writing of the occurrence of any change in the Moody's
Rating, in the S&P Rating or in the Fitch Rating.
50
ss.7.6. Existence; Maintenance of REIT Status; Maintenance of
Properties. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a Maryland trust and
its status as a self administered real estate investment trust under the Code
and the existence of Borrower as a Pennsylvania limited partnership. The common
shares of beneficial interest of the Company will at all times be listed for
trading on either the New York Stock Exchange or one of the other major stock
exchanges. The Borrower will do or cause to be done all things necessary to
preserve and keep in full force all of its rights and franchises which in the
judgment of the Borrower may be necessary to properly and advantageously conduct
the businesses being conducted by it, the Company or any of the Related
Companies. The Borrower (a) will cause all of the properties used or useful in
the conduct of the business of Borrower, the Company or any of the Related
Companies to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment, (b) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (c) will continue to engage primarily in the businesses now
conducted by it and in related businesses.
ss.7.7. Insurance. With respect to the Real Estate Assets and other
properties and businesses of Borrower, the Co-Borrowers and the Related
Companies, the Borrower will maintain or cause to be maintained insurance with
financially sound and reputable insurers against such casualties and
contingencies as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent. With respect to the Unencumbered Properties, such insurance will
include all risk casualty insurance for the replacement cost of all Buildings
including loss of rents for 12 months and, to the extent available, flood
insurance. With respect to the Unencumbered Development Properties, such
insurance will include all risk builders risk insurance. Commercial general
liability insurance shall include an excess liability policy with limits of at
least $50,000,000.
ss.7.8. Taxes. The Borrower will pay real estate taxes, other taxes,
assessments and other governmental charges against the Real Estate Assets before
the same become delinquent, and will duly pay and discharge, or cause to be paid
and discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its other properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its properties; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books adequate reserves with
respect thereto; and provided further that the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
ss.7.9. Inspection of Properties and Books. The Borrower shall permit
the Lenders, through the Agent or any of the Lenders' other designated
representatives, to visit and inspect any of the Unencumbered Properties and any
of the Unencumbered Development Properties, to examine the books of account of
the Borrower, the Company and the Related Companies (and to make copies thereof
and extracts therefrom) and to discuss the affairs, finances and accounts of the
Borrower with, and to be advised as to the same by, its officers, all at such
reasonable times and intervals as the Agent or any Lender may reasonably
request.
51
ss.7.10 Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will comply, and will cause each Co-Borrower and all Related Companies
to comply, with (a) all applicable laws and regulations now or hereafter in
effect wherever its business is conducted, including all Environmental Laws, (b)
the provisions of all applicable partnership agreements, charter documents and
by-laws, (c) all agreements and instruments to which it is a party or by which
it or any of its Real Estate Assets may be bound including the Leases, and (d)
all applicable decrees, orders, and judgments except (with respect to (a)
through (d) above) to the extent such non-compliance would not have a Material
Adverse Effect. If at any time any permit or authorization from any governmental
Person shall become necessary or required in order that the Borrower, any
Co-Borrower or the Company may fulfill or be in compliance with any of its
obligations hereunder or under any of the Loan Documents, the Borrower will
immediately take or cause to be taken all reasonable steps within the power of
the Borrower to obtain such authorization, consent, approval, permit or license
and furnish the Agent and the Lenders with evidence thereof.
ss.7.11. Use of Proceeds. Subject to the provisions of ss.2.5 hereof,
the proceeds of the Loans shall be used by the Borrower for making Investments
permitted by ss.8.2, repayment of other Indebtedness, payment of Distributions,
payment of Preferred Distributions and for working capital and other purposes
consistent with the covenants contained herein.
ss.7.12. Prepayment of Existing Fleet Facility. Borrower agrees to use
the initial advance of Loans on the Effective Date to prepay in full all loans
outstanding under the revolving credit facility in the maximum amount of
$450,000,000 pursuant to the Credit Agreement dated April 25, 2000 among
Borrower, the Company and Fleet National Bank, as Agent and the lenders party
thereto. Upon such prepayment, such credit facility shall be deemed to be
permanently terminated and each of the lenders thereunder shall be relieved of
all further obligations to advance loans or issue letters of credit pursuant to
such facilities.
ss.7.13 Notices of Significant Transactions. The Borrower will notify
the Agent in writing prior to the closing of any of the following transactions
pursuant to a single transaction or a series of related transactions:
(a) The sale or transfer of one or more Real Estate Assets for
an aggregate sales price or other consideration of $50,000,000 or more.
(b) The creation of a Lien on any one or more Real Estate
Assets which, if the same were an Unencumbered Property, would have an aggregate
Unencumbered Property Value (based on the most recently ended fiscal quarter for
which financial statements have been provided pursuant to ss.7.4) of $50,000,000
or more.
(c) The creation of Indebtedness of Borrower exceeding
$50,000,000.
52
(d) The sale or transfer of the ownership interest of Borrower
or any of the Related Companies in any of the Related Companies or the
Unconsolidated Entities if the aggregate consideration received by the Borrower
or the Related Companies in connection with such transaction exceeds
$50,000,000.
Each notice given pursuant to this ss.7.13 shall be accompanied by a Compliance
Certificate including an updated list of Unencumbered Properties and
Unencumbered Development Properties and demonstrating in reasonable detail
compliance, after giving effect to the proposed transaction, with the covenants
contained in ss.9.1 through ss.9.8.
ss.7.14. Further Assurance. The Borrower will cooperate with the Agent
and the Lenders and execute such further instruments and documents and perform
such further acts as the Agent and the Lenders shall reasonably request to carry
out to their satisfaction the transactions contemplated by this Agreement and
the other Loan Documents.
ss.7.15. Environmental Indemnification. The Borrower covenants and
agrees that it will indemnify and hold the Agent and each Lender harmless from
and against any and all claims, expense, damage, loss or liability incurred by
the Agent or any Lender (including all reasonable costs of legal representation
incurred by the Agent or any Lender, but excluding, as applicable, for the Agent
or a Lender any claim, expense, damage, loss or liability as a result of the
gross negligence or willful misconduct of the Agent or such Lender) relating to
(a) any Release or threatened Release of Hazardous Substances on any
Unencumbered Property or any Unencumbered Development Property or any Real
Estate; (b) any violation of any Environmental Laws with respect to conditions
at any Unencumbered Property or any Unencumbered Development Property or any
Real Estate or the operations conducted thereon; or (c) the investigation or
remediation of off-site locations at which the Borrower or its predecessors are
alleged to have directly or indirectly disposed of Hazardous Substances. It is
expressly acknowledged by the Borrower that this covenant of indemnification
shall survive the payment of the Loans and shall inure to the benefit of the
Agent and the Lenders, and their successors and assigns.
ss.7.16. Response Actions. The Borrower (and, to the extent relating
to Real Property owned by it, each Co-Borrower) covenants and agrees that if any
Release or disposal of Hazardous Substances shall occur or shall have occurred
on any Unencumbered Property or any Unencumbered Development Property or any
other Real Estate if the same would have a Material Adverse Effect, the Borrower
(or the Co-Borrower that owns the applicable Real Estate) will cause the prompt
containment and removal of such Hazardous Substances and remediation of such
Unencumbered Property, Unencumbered Development Property or Real Estate as
necessary to comply with all Environmental Laws or to preserve the value of such
Unencumbered Property, Unencumbered Development Property or Real Estate to the
extent necessary to avoid a Material Adverse Effect.
ss.7.17. Employee Benefit Plans.
53
(a) Representation. The Borrower and its ERISA Affiliates do
not currently maintain or contribute to any Employee Benefit Plan, Guaranteed
Pension Plan or Multiemployer Plan, except as set forth on Schedule 6.16.
(b) Notice. The Borrower will obtain the consent of the Agent
prior to the establishment of any Employee Benefit Plan or Guaranteed Pension
Plan by the Borrower or any ERISA Affiliate.
(c) In General. Each Employee Benefit Plan maintained by the
Borrower or any ERISA Affiliate will be operated in compliance in all material
respects with the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting prohibited
transactions.
(d) Terminability of Welfare Plans. With respect to each
Employee Benefit Plan maintained by the Borrower or an ERISA Affiliate which is
an employee welfare benefit plan within the meaning of ss.3(1) or ss.3(2)(B) of
ERISA, the Borrower, or the ERISA Affiliate, as the case may be, has the right
to terminate each such plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) without liability other than
liability to pay claims incurred prior to the date of termination.
(e) Multiemployer Plans. Without the consent of the Agent, the
Borrower will not enter into, maintain or contribute to, any multiemployer Plan.
(f) Unfunded or Underfunded Liabilities. The Borrower will
not, at any time, have accruing unfunded or underfunded liabilities with respect
to any Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan, or
permit any condition to exist under any Multiemployer Plan that would create a
withdrawal liability.
ss.7.18 Required Interest Rate Contracts. Commencing on the Effective
Date and thereafter until all Loans are paid in full and the Lenders have no
further obligation to make Loans hereunder, the Borrower shall maintain in
effect Interest Rate Contracts with counterparties and in form reasonably
satisfactory to the Agent covering that portion of Borrower's Variable Rate
Indebtedness equal to the amount by which Borrower's Variable Rate Indebtedness
exceeds 20% of Total GAAP Assets.
ss.8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower (and, to
the extent provided herein, each Co-Borrower) covenants and agrees as follows,
so long as any Loan or Note is outstanding or the Lenders have any obligation to
make any Loans:
ss.8.1 Restrictions on Recourse Indebtedness. Except with the prior
written consent of the Requisite Lenders, the Borrower will not, and the
Borrower will not permit any Co-Borrower or any of the Related Companies to
create, incur, assume, guarantee or become or remain liable, contingently or
otherwise, with respect to any Recourse Indebtedness described in any one or
more of the following paragraphs:
(a) Indebtedness that creates a violation of ss.9.4, ss.9.5,
ss.9.6 or ss.9.7;
54
(b) Indebtedness that constitutes an Investment pursuant to
the definition of Investment, and that creates a violation of ss.8.2;
(c) Indebtedness that is prohibited by the terms of the
Unsecured Term Notes;
(d) Indebtedness of the Borrower or a Related Company to the
Borrower or a Related Company (other than Indebtedness to a Co-Borrower) that is
not fully subordinated to the Obligations; or
(e) Indebtedness in the form of Multi-Currency Loans that are
denominated in Dollars at any time when the Borrower has the ability to obtain
additional Loans under the Facility.
ss.8.2. Restrictions on Investments. The Borrower will not, and will
not permit any Co-Borrower or any of the Related Companies to make or permit to
exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America, Federal Home Loan Mortgage Corporation, Federal National
Mortgage Association or any agency or instrumentality of the United States of
America provided such obligations are backed by the full faith and credit of the
United States of America, that mature within one (1) year from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit, money market
accounts, bankers acceptances, LIBOR time deposits and time deposits of United
States banks having total assets in excess of $1,000,000,000 or repurchase
obligations with a term of not more than 7 days with such banks for underlying
securities of the type described in clause (a) of this ss.8.2;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated and
the ratings for which are not less than " P 1 " if rated by Moody's Investors
Services, Inc., and not less than "A 1" if rated by Standard and Poor's and
participations in short term commercial loans made to such corporations by a
commercial bank which provides cash management services to the Borrower;
(d) Investments existing or contemplated on the date hereof
and listed on Schedule 8.2(d) hereto;
(e) Investments made in the ordinary course of the Borrower's
business in Interest Rate Contracts;
(f) Investments in Permitted Acquisitions;
55
(g) Investments in the following categories so long as the
aggregate amount, without duplication, of all Investments described in this
paragraph (g) does not exceed, at any time, thirty percent (30%) of Total Assets
and the aggregate amount of each of the following categories of Investments does
not exceed the specified percentage of Total Assets set forth in the following
table:
- -----------------------------------------------------------------------------------------------------------
Category of Investment Maximum Percentage of Total Assets
- ----------------------------------------------------------- -----------------------------------------------
Permitted Developments 25%
- ----------------------------------------------------------- -----------------------------------------------
Permitted Inventory Developments 10%
- ----------------------------------------------------------- -----------------------------------------------
Undeveloped land 8%
- ----------------------------------------------------------- -----------------------------------------------
Mortgages and notes receivable 10%
- ----------------------------------------------------------- -----------------------------------------------
Unconsolidated Entities primarily engaged in a Related 3%
Business
- ----------------------------------------------------------- -----------------------------------------------
Rouse Kent Joint Venture 5%
- ----------------------------------------------------------- -----------------------------------------------
Unconsolidated Entities (including those in the 15%
subcategory set forth below in this table)
- ----------------------------------------------------------- -----------------------------------------------
Unconsolidated Entities (other than Rouse Kent Joint 5%
Venture) primarily engaged in the business of development
or ownership of real estate located outside of the United
States
- -----------------------------------------------------------------------------------------------------------
ss.8.3. Merger, Consolidation and Other Fundamental Changes. The
Borrower will not, and will not permit the Company or any of the Related
Companies to (i) become a party to any merger or consolidation, or (ii) agree to
or effect any property acquisition or stock acquisition (other than Permitted
Acquisitions in compliance with the other terms of this Agreement), or (iii)
enter into any joint venture or invest in any Unconsolidated Entity unless prior
to such transaction the Borrower has provided the Agent with a notice describing
such transaction and, if the reasonably expected financial impact on the
Borrower as reflected on its balance sheet arising from all transactions
described in this ss.8.3 shall exceed 15% of Total Assets, the Borrower shall
have obtained the prior consent of the Requisite Lenders provided, however, that
this ss.8.3 shall not be applicable to (A) any merger, consolidation or transfer
among the Borrower's wholly-owned subsidiaries other than Co-Borrowers, (B) any
merger or consolidation of a Co-Borrower into the Borrower or any transfer from
a Co-Borrower to the Borrower, or (C) any merger or consolidation with respect
to which all of the following are satisfied: (1) the surviving entity is
Borrower, the Company or any Co-Borrower and there is no substantial change in
senior management of the Company, (2) the other entity or entities involved in
such merger or consolidation are engaged in the same line of business as
Borrower, and (3) following such transaction, the Borrower and the Company will
not be in breach of any of the covenants, representations or warranties of this
Agreement. Except as set forth on Schedule 6.19, the Company will not own or
acquire any material assets other than its partnership interest in the Borrower.
If the Company is the surviving entity in a merger, the assets acquired pursuant
thereto will be immediately transferred to the Borrower.
56
ss.8.4. Sale and Leaseback. The Borrower will not enter into any
arrangement, directly or indirectly, whereby the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower intends to use for substantially the same
purpose as the property being sold or transferred. The Borrower will not permit
the Company or any of the Related Companies to enter into any such arrangement.
ss.8.5. Compliance with Environmental Laws. The Borrower will not do,
and will not permit the Company or any of the Related Companies to do, any of
the following: (a) use any of the Real Estate or any portion thereof as a
facility for the handling, processing, storage or disposal of Hazardous
Materials except for immaterial amounts of Hazardous Materials used in the
routine maintenance and operation of the Real Estate and in compliance with
applicable law, (b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous Materials
except in material compliance with Environmental Laws, (c) generate any
Hazardous Materials on any of the Real Estate except in material compliance with
Environmental Laws, or (d) conduct any activity at any Real Estate or use any
Real Estate in any manner so as to cause a Release.
ss.8.6. Distributions. Borrower shall not permit the total
Distributions by it and the Company during any fiscal year to exceed 90% of
Funds from Operations for such year and shall not permit there to be more than
two consecutive fiscal quarters during which the total Distributions by Borrower
and the Company during each fiscal quarter exceed 100% of Funds from Operations
for such fiscal quarter except that such limitations on Distributions may be
exceeded to the extent necessary for the Company to maintain its REIT status
provided that the Company provides the Agent with a letter from its accountants
or attorneys setting forth the basis for computation of the amount of such
necessary excess Distributions. During any period when any Default or Event of
Default has occurred and is continuing the total Distributions by the Borrower
and the Company will not exceed the minimum amount necessary for the Company to
maintain its REIT status. The Co-Borrowers will not make any Distributions
except Distributions to Borrower.
ss.8.7. Equity Repurchase Payments. Borrower shall not permit the
total Equity Repurchase Payments by it and the Company during any fiscal year to
exceed $100,000,000. During any period when any Default or Event of Default has
occurred and is continuing no Equity Repurchase Payments will be made.
ss.8.8. Preferred Distributions. During any period when any Event of
Default has occurred and is continuing no Preferred Distributions will be made.
ss.9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower covenants and
agrees as follows, so long as any Loan or Note is outstanding or any Lender has
any obligation to make any Loan:
ss.9.1. Value of All Unencumbered Properties. The Borrower will not at
any time permit the Value of All Unencumbered Properties to be less than one
hundred seventy five percent (175%) of the outstanding balance of Unsecured
Indebtedness.
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ss.9.2. Minimum Debt Service Coverage. The Borrower will not at any
time permit the outstanding principal amount of Unsecured Indebtedness to exceed
an amount such that: (a) the Unencumbered Net Operating Income, divided by (b)
Pro Forma Unsecured Debt Service Charges would be less than 1.5 for any fiscal
quarter of Borrower.
ss.9.3. Total Debt to Total Assets. The Borrower will not at any time
permit Total Debt to exceed fifty-five percent (55%) of Total Assets.
ss.9.4. Maximum Secured Debt. The Borrower will not at any time permit
the outstanding balance of Secured Indebtedness to exceed thirty percent (30%)
of Total Assets.
ss.9.5. Minimum Tangible Net Worth. The Borrower will not at any time
permit the Tangible Net Worth of the Borrower to be less than $1,045,875,000
plus 75% of Net Offering Proceeds.
ss.9.6. Total Operating Cash Flow to Interest Expense. The Borrower
will not permit the ratio of its Total Operating Cash Flow to Interest Expense
to be less than 1.85 to 1.0 for any fiscal quarter.
ss.9.7. Adjusted EBITDA to Fixed Charges. The Borrower will not permit
the ratio of its Adjusted EBITDA to Fixed Charges to be less than 1.75 to 1.0
for any fiscal quarter.
ss.9.8. Aggregate Occupancy Rate. The Borrower will not at any time
permit the Aggregate Occupancy Rate to be less than eighty-five percent (85%).
ss.10. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective when each of the following conditions precedent have been satisfied:
ss.10.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to each of the
Lenders. Each Lender shall have received a fully executed copy of each such
document prior to or on the Effective Date.
ss.10.2. Certified Copies of Organization Documents; Good Standing
Certificates. The Agent shall have received (i) a Certificate of the Company to
which there shall be attached complete copies of the Borrower's Limited
Partnership Agreement and its Certificate of Limited Partnership, certified as
of a recent date by the Secretary of State of Pennsylvania, (ii) Certificates of
Good Standing for the Borrower from the State of Pennsylvania and each State in
which an Unencumbered Property or an Unencumbered Development Property is
located, (iii) a copy of the Company's Declaration of Trust certified by the
Maryland Secretary of State, (iv) Certificates of Good Standing for the Company
from the State of Maryland and the Commonwealth of Pennsylvania, and (v)
certificates of good standing and certificates from the Borrower with respect to
the provisions of applicable organizational documents of the Co-Borrowers.
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ss.10.3. By-laws; Resolutions. All action on the part of the Borrower
and each Co-Borrower necessary for the valid execution, delivery and performance
by the Borrower and each Co-Borrower of this Agreement and the other Loan
Documents to which it is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to the Agent shall have
been provided to the Agent. The Agent shall have received from the Company true
copies of its by-laws and the resolutions adopted by its Board of Directors
authorizing the transactions described herein, each certified by its secretary
to be true and complete and in effect on the Effective Date.
ss.10.4. Incumbency Certificate; Authorized Signers. The Agent shall
have received from the Company an incumbency certificate, dated as of the
Effective Date, signed by a duly authorized officer of the Company and giving
the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of the Company (in its own
capacity and as general partner on behalf of Borrower and on behalf of each
Co-Borrower which is a partnership), each of the Loan Documents to which the
Borrower, any Co-Borrower or the Company is or is to become a party; (b) to make
Loan Requests and Conversion Requests; and (c) to give notices and to take other
action on behalf of the Borrower under the Loan Documents.
ss.10.5. Opinions of Counsel Concerning Organization and Loan
Documents. Each of the Lenders and the Agent shall have received favorable
opinions from Borrower's counsel addressed to the Lenders and the Agent and
dated as of the Effective Date, in form and substance satisfactory to the Agent.
ss.10.6. Payment of Fees. The Borrower shall have paid to the Agent
the fees pursuant to ss.4.1 and shall have paid all other expenses as provided
in ss.15 hereof then outstanding.
ss.10.7. Effectiveness of Multi-Currency Credit Agreement. All
conditions to effectiveness set forth in ss.10 of the Multi-Currency Credit
Agreement shall have been satisfied such that the Effective Date of the
Multi-Currency Credit Agreement shall be the same as the Effective Date
hereunder.
ss.11. CONDITIONS TO ALL CREDIT ADVANCES. The obligations of the
Lenders to make any Loan or to issue any Letter of Credit, whether on or after
the Effective Date, shall also be subject to the satisfaction of the following
conditions precedent:
ss.11.1. Representations True; No Event of Default; Compliance
Certificate. Each of the representations and warranties of the Borrower and the
Company contained in this Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Agreement shall
be true as of the date as of which they were made and shall also be true at and
as of the time of the making of such Loan or the issuance of such Letter of
Credit, with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted by this
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and except to the extent that such representations and warranties relate
expressly to an earlier date); the Borrower shall have performed and complied
with all terms and conditions herein required to be performed by it or prior to
the Borrowing Date of such Loan or the issuance date of such Letter of Credit;
and no Default or Event of Default shall have occurred and be continuing on the
date of any Loan Request or on the Borrowing Date of such Loan or on the date of
any Letter of Credit Request or on the issuance date of such Letter of Credit.
Each of the Lenders shall have received a Compliance Certificate of the Borrower
signed by a Responsible Officer to such effect, which certificate will include,
without limitation, computations evidencing compliance with the covenants
contained in ss.9.1 through ss.9.7 hereof after giving effect to such requested
Loan or Letter of Credit.
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ss.11.2. No Legal Impediment. No change shall have occurred in any law
or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Lender would make it illegal for such Lender to make such Loan or
to hold an interest in such Letter of Credit.
ss.11.3. Governmental Regulation. Each Lender shall have received such
statements in substance and form reasonably satisfactory to such Lender as such
Lender shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
ss.11.4. Proceedings and Documents. All proceedings in connection with
the transactions contemplated by this Agreement, the other Loan Documents and
all other documents incident thereto shall be reasonably satisfactory in
substance and in form to the Agent, and the Lenders shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC.
ss.12.1. Events of Default and Acceleration. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loans
within five (5) days after the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on the Loans
or any other sums due hereunder or under any of the other Loan Documents when
the same shall become due and payable;
(c) the Borrower or the Company shall fail to comply with any
of its covenants contained in ss.7.5, the first sentence of ss.7.6, ss.7.7,
ss.7.13, ss.8 or ss.9 hereof;
(d) the Borrower, any Co-Borrower or the Company shall fail to
perform any other term, covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified elsewhere in this ss.12) for
thirty (30) days after written notice of such failure from Agent to the
Borrower;
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(e) any representation or warranty of the Borrower in this
Agreement or any of the other Loan Documents or in any other document or
instrument delivered pursuant to or in connection with this Agreement, shall
prove to have been false in any material respect upon the date when made or
deemed to have been made or repeated, provided, however, that with respect to
the representations and warranties of the Borrower contained in ss.6.2, ss.6.3,
ss.6.13, ss.6.18 and ss.6.21, if the condition or event making the
representation and warranty false is capable of being cured by the Borrower, no
enforcement action has been commenced against the Borrower or the applicable
Unencumbered Property or Unencumbered Development Property on account of such
condition or event nor is the applicable Unencumbered Property or Unencumbered
Development Property subject to risk of forfeiture due to such condition or
event, and the Borrower promptly commences the cure thereof after the Borrower's
first obtaining knowledge of such condition or event, the Borrower shall have a
period of thirty (30) days after the date that the Borrower first obtained
knowledge of such condition or event during which the Borrower may cure such
condition or event (or, if such condition or event is not reasonably capable of
being cured within such thirty (30) day period, such additional period of time
as may be reasonably required in order to cure such condition or event but in
any event such period shall not exceed six (6) months from the date that the
Borrower first obtained knowledge of such condition or event), and no Event of
Default shall exist hereunder during such thirty (30) day or additional period
so long as the Borrower continuously and diligently pursues the cure of such
condition or event and the other conditions to such cure period have not
changed;
(f) the Borrower, the Company or any of the Related Companies
shall fail to pay at maturity, or within any applicable period of grace, any
Recourse Indebtedness, or shall fail to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing Indebtedness for such period of time as would permit
(assuming the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity
thereof, and in any event, such failure shall continue for thirty (30) days,
unless the aggregate amount of all such defaulted Recourse Indebtedness plus the
amount of any unsatisfied judgments described in paragraph (i) of this ss.12.1
is less than $30,000,000.00;
(g) any of the Borrower, the Company or any Co-Borrower shall
make an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or become
due, or shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any substantial part of its properties or
shall commence any case or other proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or
shall take any action to authorize or in furtherance of any of the foregoing, or
if any such petition or application shall be filed or any such case or other
proceeding shall be commenced against any such Person and such Person shall
indicate its approval thereof, consent thereto or acquiescence therein or any of
the events described in this paragraph shall occur with respect to any other
Related Company or any Unconsolidated Entity and such event shall have a
Material Adverse Effect;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower, the Company, or
any Co-Borrower bankrupt or insolvent, or approving a petition in any such case
or other proceeding, or a decree or order for relief is entered in respect of
the Borrower, the Company, or any Co-Borrower in an involuntary case under
federal bankruptcy laws as now or hereafter constituted or any of the events
described in this paragraph shall occur with respect to any other Related
Company or any Unconsolidated Entity and such event shall have a Material
Adverse Effect;
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(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any uninsured
final judgment against the Borrower that, with other outstanding uninsured final
judgments, undischarged, against the Borrower, the Company or any of the Related
Companies plus the amount of any defaulted Recourse Indebtedness under paragraph
(f) of this ss.12.1, exceeds in the aggregate $30,000,000.00;
(j) if any of the Loan Documents or any material provision of
any Loan Documents shall be unenforceable, cancelled, terminated, revoked or
rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Agent, or any action
at law, suit or in equity or other legal proceeding to make unenforceable,
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower, any Co-Borrower or the Company, or any court or any
other governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or ruling to
the effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(k) the Borrower, any Co-Borrower or the Company shall be
indicted for a federal crime, a punishment for which could include the
forfeiture of any assets of the Borrower;
(l) the Borrower shall fail to pay, observe or perform any
term, covenant, condition or agreement contained in any agreement, document or
instrument evidencing, securing or otherwise relating to any Indebtedness of the
Borrower to any Lender (other than the Obligations) and/or relating to any
Permitted Lien (other than the Obligations) within any applicable period of
grace provided for in such agreement, document or instrument;
(m) any "Event of Default", as defined in any of the other
Loan Documents or in the Multi-Currency Credit Agreement, shall occur;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Requisite Lenders shall, by notice in writing
to the Borrower declare all amounts owing with respect to this Agreement, the
Notes and the other Loan Documents to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower and the Co-Borrowers; provided that in the event of any Event of
Default specified in ss.ss.12.1(g) or 12.1(h), all such amounts shall become
immediately due and payable automatically and without any requirement of notice
from the Agent or action by the Requisite Lenders.
ss.12.2. Termination of Commitments. If any one or more Events of
Default specified in ss.12.1(g) or ss.12.1(h) shall occur, any unused portion of
the Commitments, and of the Swingline Commitment, shall forthwith terminate and
the Lenders shall be relieved of all obligations to make Loans to the Borrower
or to any Co-Borrower or to issue Letters of Credit for the benefit of the
Borrower. If any other Event of Default shall have occurred and be continuing,
any Lender may by notice to the Borrower terminate the unused portion of its
Commitment hereunder, and of the Swingline Commitment, and upon such notice
being given such unused portion of its Commitment or of the Swingline
Commitment, shall terminate immediately and such Lender shall be relieved of all
further obligations to make Loans other than Mandatory Prime Rate Loans. No
termination of such Lender's Commitment hereunder shall relieve the Borrower or
any of the Co-Borrowers of any of the Obligations or any of its existing
obligations to such Lender arising under other agreements or instruments.
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ss.12.3. Remedies. In case any one or more of the Events of Default
shall have occurred, and whether or not the Requisite Lenders shall have
accelerated the maturity of the Loans pursuant to ss.12.1, each Lender, if owed
any amount with respect to the Loans, may, with the consent of the Requisite
Lenders, direct the Agent to proceed to protect and enforce the rights and
remedies of the Agent and the Lenders under this Agreement, the Notes or any of
the other Loan Documents by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement and the other Loan Documents or any instrument
pursuant to which the Obligations are evidenced and, if any amount shall have
become due, by declaration or otherwise, to proceed to enforce the payment
thereof or any other legal or equitable right of such Lender. No remedy herein
conferred upon any Lender or the Agent or the holder of any Note is intended to
be exclusive of any other remedy and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of
law.
ss.12.4. Distribution of Enforcement Proceeds. In the event that,
following the occurrence or during the continuance of any Default or Event of
Default, the Agent or any Lender as the case may be, receives any monies in
connection with the enforcement of any of the Loan Documents, such monies shall
be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent or the Lenders under this Agreement
or any of the other Loan Documents or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Requisite Lenders may determine; provided, however, that
distribution in respect of such Obligations shall be made among the Lenders pro
rata in accordance with each Lender's respective Credit Exposure; and provided,
further, that the Agent may in its discretion make proper allowance to take into
account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Requisite Lenders and the
Agent of all of the Obligations, and the deposit in any cash collateral account
established pursuant to ss.2.9(f) of the amount required thereby, to the payment
of any obligations required to be paid pursuant to laws applicable to the
enforcement proceedings; and
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(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are legally entitled thereto.
ss.13. SETOFF. Borrower and each Co-Borrower hereby grants to each
Lender, a continuing lien, security interest and right of setoff as security for
all liabilities and obligations to such Lender hereunder, whether now existing
or hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
such Lender or in transit to it. At any time, without demand or notice (any such
notice being expressly waived by Borrower and each Co-Borrower), any Lender may
setoff the same or any part thereof and apply the same to any liability or
obligation of Borrower hereunder even though unmatured and regardless of the
adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO
REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER OR
ANY CO-BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY THE
BORROWER AND EACH CO-BORROWER. Each of the Lenders agrees with each other Lender
that if such Lender shall receive from the Borrower or any Co-Borrower, whether
by voluntary payment, exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the Notes held by such Lender by
proceedings against the Borrower or any Co-Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Lender any amount in excess of its ratable
portion of the payments received by all of the Lenders with respect to the Notes
held by all of the Lenders, such Lender will make such disposition and
arrangements with the other Lenders with respect to such excess, either by way
of distribution, pro tanto assignment of claims, subrogation or otherwise as
shall result in each Lender receiving in respect of the Notes held by it its
proportionate payment as contemplated by this Agreement; provided that if all or
any part of such excess payment is thereafter recovered from such Lender, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest, unless the Lender from whom such
payment is recovered is required to pay interest thereon, in which case each
Lender returning funds to such Lender shall pay its allocable share of such
interest based on the period of time that it was in possession of the funds
being returned.
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ss.14. THE AGENT.
ss.14.1. Authorization. The Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated to
the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed herein or
therein shall be implied to have been assumed by the Agent. The relationship
between the Agent and the Lenders is and shall be that of agent and principal
only, and nothing contained in this Agreement or any of the other Loan Documents
shall be construed to constitute the Agent as a trustee for any Lender.
ss.14.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
ss.14.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
ss.14.4. No Representations. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes. The Agent shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to it by the Borrower or any holder
of any of the Notes shall have been duly authorized or is true, accurate and
complete. The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Lenders,
with respect to the credit worthiness or financial condition of the Borrower.
Each Lender acknowledges that it has, independently and without reliance upon
the Agent or any other Lender, and based upon such information and documents as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender has been independently represented by separate
counsel on all matters regarding this Agreement.
ss.14.5. Payments.
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(a) A payment by the Borrower, any Co-Borrower or the Company
to the Agent hereunder or any of the other Loan Documents for the account of any
Lender shall constitute a payment to such Lender subject to the pro rata rights
to repayment based upon the Commitment of each Lender, as applicable, provided
that payments made with respect to Competitive Bid Loans shall be allocated and
distributed to the applicable Lenders holding such Competitive Bid Loans. The
Agent agrees promptly to distribute to each Lender such Lender's pro rata share
of payments received by the Agent for the account of the Lenders except as
otherwise expressly provided herein or in any of the other Loan Documents.
Notwithstanding the foregoing, the amounts advanced by the Additional Commitment
Lenders on the Commitment Increase Date and certain LIBOR Prepayment Fees and
Letter of Credit fees shall be distributed on a non pro rata basis as provided
in ss.2.2(b) and the Facility Fees for the quarter which included the Commitment
Increase Date shall be paid as provided in ss.4.2.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may refrain from
making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent
is to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Lender that fails (i) to make
available to the Agent its pro rata share of any Loan or (ii) to comply with the
provisions of ss.13 with respect to making dispositions and arrangements with
the other Lenders, where such Lender's share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Lenders, in each case as, when and to the full extent
required by the provisions of this Agreement, or to adjust promptly such
Lender's outstanding principal and its pro rata Commitment Percentage as
provided in ss.2.1 hereof, shall be deemed delinquent (a "Delinquent Lender")
and shall be deemed a Delinquent Lender until such time as such delinquency is
satisfied. A Delinquent Lender shall be deemed to have assigned any and all
payments due to it from the Borrower, whether on account of outstanding Loans,
interest, fees or otherwise, to the remaining nondelinquent Lenders for
application to, and reduction of, their respective pro rata shares of all
outstanding Loans. The Delinquent Lender hereby authorizes the Agent to
distribute such payments to the nondelinquent Lenders in proportion to their
respective pro rata shares of all outstanding Loans. A Delinquent Lender shall
be deemed to have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans of the
nondelinquent Lenders, the Lenders' respective pro rata shares of all
outstanding Loans have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
(d) If any amount which the Agent is required to distribute to the
Lenders pursuant to this ss.14.5 is actually distributed to any Lender on a date
which is later than the first Business Day following the Agent's receipt of the
corresponding payment from the Borrower, the Agent shall pay to such Lender on
demand an amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, times (ii) the amount of such late distribution to such Lender,
times (iii) a fraction, the numerator of which is the number of days or portion
thereof that elapsed from and including the second Business Day after the
Agent's receipt of such corresponding payment from the Borrower to the date on
which the amount so required to be distributed to such Lender actually is
distributed, and the denominator of which is 365.
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ss.14.6. Holders of Notes. The Agent may deem and treat the payee of
any Note as the absolute owner or purchaser thereof for all purposes hereof
until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder assignee or transferee.
ss.14.7. Indemnity. The Lenders ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by ss.15), and liabilities of every nature and character arising out of
or related to this Agreement, the Notes, or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or thereby, or the Agent's
actions taken hereunder or thereunder, except to the extent that any of the same
shall be directly caused by the Agent's willful misconduct or gross negligence.
ss.14.8. Agent as Lender. In its individual capacity, Fleet shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of the Notes
as it would have were it not also the Agent.
ss.14.9. Resignation. The Agent may resign at any time by giving sixty
(60) days' prior written notice thereof to the Lenders and the Borrower,
provided that the Agent must simultaneously resign as agent under the
Multi-Currency Credit Agreement. Upon any such resignation, the Requisite
Lenders shall have the right to appoint a successor Agent, provided that the
same successor Agent must simultaneously be appointed as successor agent under
the Multi-Currency Credit Agreement. Unless a Default or Event of Default shall
have occurred and be continuing, appointment of such successor Agent shall be
subject to the reasonable approval of the Borrower. If no successor Agent shall
have been so appointed by the Requisite Lenders and shall have accepted such
appointment within thirty (30) days after the giving of notice of resignation by
the retiring Agent or if the Borrower has disapproved or failed to approve a
successor agent within such period, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent, which shall be a financial institution
which satisfies the definition of Eligible Assignee. Upon the acceptance of any
appointment as Agent hereunder (and as agent under the Multi-Currency Credit
Agreement) by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations as Agent hereunder. Such successor Agent shall issue replacement
Letters of Credit and any outstanding Letters of Credit issued by the retiring
Agent shall be canceled and returned to it. Such successor Agent shall also
replace the retiring Agent in its capacity as Swingline Lender and in its
capacity as agent as agent under the Multi-Currency Credit Agreement. After any
retiring Agent's resignation, the provisions of this Agreement and the other
Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
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ss.14.10. Notification of Defaults and Events of Default and other
Notices. Each Lender hereby agrees that, upon learning of the existence of a
Default or an Event of Default, it shall promptly notify the Agent thereof. The
Agent hereby agrees that upon receipt of any notice under this ss.14.10, or upon
it otherwise learning of the existence of a Default or an Event of Default, it
shall promptly notify the other Lenders of the existence of such Default or
Event of Default. The Agent shall also promptly provide each Lender with a copy
of any notices which the Agent receives from the Borrower pursuant to ss.7.5 or
ss.7.13.
ss.14.11. Duties in the Case of Enforcement. In case one of more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent may, with the
consent of the Requisite Lenders (which consents may be obtained orally in
emergency situations), and the Agent shall, if (a) so requested by the Requisite
Lenders and (b) the Lenders have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the Loan Documents and
exercise all or any such other legal and equitable and other rights or remedies
as it may have. The Requisite Lenders may direct the Agent in writing as to the
method and the extent of any such enforcement actions, the Lenders hereby
agreeing to indemnify and hold the Agent harmless from all liabilities incurred
in respect of all actions taken or omitted in accordance with such directions,
provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent's compliance with such direction to
be unlawful or commercially unreasonable in any applicable jurisdiction.
ss.14.12. Mandatory Resignation of Agent. In the event that the Agent
enters into one or more Assignments pursuant to ss.18 having the effect of
reducing the sum of the Agent's Commitment hereunder plus its Commitment under
the Multi-Currency Credit Agreement to less than $20,000,000 (which number will
be reduced in proportion to any pro rata reduction in the Total Commitment
pursuant to ss.2.2(c) hereof or ss.2.2(a) of the Multi-Currency Credit
Agreement), then the Agent shall promptly so notify the Lenders. Upon the
written request of any Lender whose aggregate Commitment hereunder and under the
Multi-Currency Facility exceeds that of the Agent, which written request is made
within thirty (30) days after the Agent's notice that its Commitment is below
such minimum level, the Agent shall be obligated to resign pursuant to ss.14.9.
Further, the Agent shall be obligated to resign pursuant to ss.14.9 upon the
written request made for cause by Lenders whose aggregate Commitments constitute
at least sixty-six percent (66%) of the Total Commitment excluding the
Commitments of the Lender which is then the Agent hereunder. If Agent shall be
so obligated to resign pursuant to this ss.14.12, it shall also resign pursuant
to ss.14.9 of the Multi-Currency Credit Agreement.
ss.15. EXPENSES. The Borrower agrees to pay (a) the reasonable costs of
producing and reproducing this Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Lenders (other than taxes based upon the Agent's or any Lender's net income),
including any recording, mortgage, documentary or intangibles taxes in
connection with the Loan Documents, or other taxes payable on or with respect to
the transactions contemplated by this Agreement, including any taxes payable by
the Agent or any of the Lenders after the Effective Date (the Borrower hereby
agreeing to indemnify the Lenders with respect thereto), (c) all title
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examination costs, appraisal fees, engineers', inspectors' and surveyors' fees,
recording costs and the reasonable fees, expenses and disbursements of the
Agent's counsel or any local counsel to the Agent incurred in connection with
the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) the fees,
costs, expenses and disbursements of the Agent incurred in connection with the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein including without limitation, the costs incurred by
the Agent in connection with its inspection of the Unencumbered Properties and
the Unencumbered Development Properties, and the fees and disbursements of the
Agent's counsel and the Borrower's legal counsel in preparing documentation, (e)
the fees, costs, expenses and disbursements of the Agent incurred in connection
with the syndication and/or participation of the Loans, (f) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Lender or the Agent and the fees and costs of
appraisers, engineers, investment bankers, surveyors or other experts retained
by the Agent or any Lender in connection with any such enforcement proceedings)
incurred by any Lender or the Agent in connection with (i) the enforcement of or
preservation of rights under any of the Loan Documents against the Borrower or
the administration thereof after the occurrence of a Default or Event of Default
(including, without limitation, expenses incurred in any restructuring and/or
"workout" of the Loans), and (ii) any litigation, proceeding or dispute whether
arising hereunder or otherwise, in any way related to the Agent's or the
Lender's relationship with the Borrower, the Company, any Unconsolidated Entity
or any of the Related Companies, (g) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, and (h) all
costs incurred by the Agent in the future in connection with its inspection of
the Unencumbered Properties and the Unencumbered Development Properties. The
covenants of this ss.15 shall survive payment or satisfaction of payment of
amounts owing with respect to the Notes.
ss.16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Agent and the Lenders and the shareholders, directors, agents,
officers, subsidiaries, and affiliates of the Agent and the Lenders from and
against any and all claims, actions or causes of action and suits whether
groundless or otherwise, and from and against any and all Liabilities, losses,
settlement payments, obligations, damages and expenses of every nature and
character arising out of this Agreement or any of the other Loan Documents or
the transactions contemplated hereby or which otherwise arise in connection with
the financing including, without limitation except to the extent directly caused
by the gross negligence or willful misconduct of a Lender or the Agent (but such
limitation on indemnification shall only apply to the Agent or Lender being
grossly negligent or committing willful misconduct), (a) any actual or proposed
use by the Borrower or any Co-Borrower of the proceeds of any of the Loans, (b)
any actual or alleged infringement of any patent, copyright, trademark, service
mark or similar right of the Borrower, (c) the Borrower entering into or
performing this Agreement or any of the other Loan Documents or (d) with respect
to the Borrower and its respective properties, the violation of any
Environmental Law, the Release or threatened Release of any Hazardous Substances
or any action, suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited to claims with
respect to wrongful death, personal injury or damage to property), (e) any cost,
claim liability, damage or expense in connection with any harm the Borrower may
be found to have caused in the role of a broker, in each case including, without
limitation, the reasonable fees and disbursements of counsel and allocated costs
of internal counsel incurred in connection with any such investigation,
litigation or other proceeding. In litigation, or the preparation therefor, the
Lenders and the Agent shall each be entitled to select their own separate
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under this ss.16 are unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The provisions of this ss.16 shall survive the repayment of the
Loans and the termination of the obligations of the Lenders hereunder and shall
continue in full force and effect as to the Lenders so long as the possibility
of any such claim, action, cause of action or suit exists.
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ss.17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower, any Co-Borrower or the Company pursuant hereto shall be deemed to
have been relied upon by the Lenders and the Agent, notwithstanding any
investigation heretofore or hereafter made by it, and shall survive the making
by the Lenders of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding or the Lenders have any
obligation to make any Loans. The indemnification obligations of the Borrower
provided herein and the other Loan Documents shall survive the full repayment of
amounts due and the termination of the obligations of the Lenders hereunder and
thereunder to the extent provided herein and therein. All statements contained
in any certificate or other paper delivered to the Agent or any Lender at any
time by or on behalf of the Borrower pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by the Borrower hereunder.
ss.18. ASSIGNMENT; PARTICIPATIONS; ETC.
ss.18.1. Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld or delayed, except
that such consent shall not be needed with respect to an assignment from a
Lender to either one of its Affiliated Lenders or to another Lender hereunder,
(b) each such assignment shall be of a portion of the assigning Lender's rights
and obligations under this Agreement relating to a specified Commitment amount
and Commitment Percentage, (c) each assignment shall be in an amount of not less
than $10,000,000 that is a whole multiple of $1,000,000, (d) each Lender either
shall assign all of its Commitment and cease to be a Lender hereunder or shall
retain, free of any such assignment, an amount of its Commitment of not less
than $10,000,000, and (e) the parties to such assignment shall execute and
deliver to the Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit E hereto (an
"Assignment and Acceptance"), together with any Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, (i) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder, and (ii) the assigning Lender shall, to the extent provided in
such assignment and upon payment to the Agent of the registration fee referred
to in ss.18.3, be released from its obligations under this Agreement. So long as
no Default or Event of Default has occurred and is continuing, Borrower's
consent shall also be required for any assignment to an Eligible Assignee which
is not at the time a Lender hereunder or one of such Lender's Affiliated Lenders
provided that Borrower's consent shall not be unreasonably withheld or delayed
and shall not be withheld unless Borrower simultaneously designates an
alternative Eligible Assignee (approved by the Agent) who agrees to accept an
assignment of the interest which the assigning Lender proposed to assign and pay
to such assigning Lender a sum equal to the outstanding balance of principal and
interest of Loans relating to the Commitment Percentage being assigned.
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ss.18.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance by
the Borrower or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in ss.6.4 and ss.7.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d) such assignee will,
independently and without reliance upon the assigning Lender, the Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement, (e) such assignee represents and
warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as "Agent" on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender; and (h) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance.
ss.18.3 Register. The Agent shall maintain a copy of each Assignment
and Acceptance delivered to it and a register or similar list (the "Register")
for the recordation of the names and addresses of the Lenders and the Commitment
Percentages of, and principal amount of the Loans owing to the Lenders from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Lender agrees
to pay to the Agent a registration fee in the sum of $2,500.00, provided that
such registration fee shall not be required for assignments to an Eligible
Assignee which is an affiliate of the assigning Lender. The Agent may, without
action by any other party, amend Schedules 1 and 1.2 hereof to reflect the
recording of any such assignments.
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ss.18.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the Lenders
(other than the assigning Lender). Within five (5) Business Days after receipt
of such notice, the Borrower and each Co-Borrower, at its own expense, shall
execute and deliver to the Agent, in exchange for each surrendered Note, a new
Note to the order of such Eligible Assignee in an amount equal to the amount
assumed by such Eligible Assignee pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained some portion of its Loans hereunder, a
new Note to the order of the assigning Lender in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes and that they do not constitute a
novation, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes. Within five (5) days of issuance of any new Notes
pursuant to this ss.18.4, the Borrower shall deliver an opinion of counsel,
addressed to the Lenders and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and binding
effect thereof, and that the Obligations evidenced by the new Notes have the
same validity, enforceability and priority as if given on the Effective Date, in
form and substance satisfactory to the Lenders. The surrendered Notes shall be
cancelled and returned to the Borrower.
ss.18.5. Participations. Each Lender may sell participations to one or
more banks or other entities in a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents not to exceed
forty-nine percent (49%) of its Commitment Percentage; provided that (a) the
Agent shall have given its prior written consent to such participation, which
consent shall not be unreasonably withheld or delayed, except that any Lender
may sell participations to its Affiliated Lenders without such consent, (b) each
such participation, other than participations to its Affiliated Lenders or to
another Lender hereunder, shall be in an amount of not less than $5,000,000 that
is a whole multiple of $1,000,000, (c) any such sale or participation shall not
affect the rights and duties of the selling Lender hereunder to the Borrower and
the Lender shall continue to exercise all approvals, disapprovals and other
functions of a Lender, (d) the only rights granted to the participant pursuant
to such participation arrangements with respect to waivers, amendments or
modifications of the Loan Documents shall be the rights to approve the vote of
the Lender as to waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Lender as it relates to such participant,
reduce the amount of any fees to which such participant is entitled or extend
any regularly scheduled payment date for principal or interest, provided that
all approvals affecting a Loan or this Agreement under this clause (d) shall be
by a fifty-one percent (51%) vote of such Lender's Commitment Percentage, and
(e) no participant which is not a Lender hereunder shall have the right to grant
further participations or assign its rights, obligations or interests under such
participation to other Persons without the prior written consent of the Agent.
The Agent shall promptly advise the Borrower in writing of any such sale or
participation.
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ss.18.6. Pledge by Lender. Any Lender may at any time pledge all or
any portion of its interest and rights under this Agreement (including all or
any portion of its Note) to any of the twelve Federal Reserve Banks organized
under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341. No such pledge or the
enforcement thereof shall release the pledgor Lender from its obligations
hereunder or under any of the other Loan Documents.
ss.18.7. No Assignment by Borrower. The Borrower and the Co-Borrowers
shall not assign or transfer any of their respective rights or obligations under
any of the Loan Documents without the prior written consent of each of the
Lenders, and any such attempted assignment shall be null and void.
ss.18.8. Disclosure. The Borrower and each Co-Borrower agrees that in
addition to disclosures made in accordance with standard banking practices any
Lender may disclose information obtained by such Lender pursuant to this
Agreement to assignees or participants and potential assignees or participants
hereunder.
ss.19. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices and other communications made or required to be given
pursuant to this Agreement or the Notes shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, telefax or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower or any Co-Borrower, at 65 Valley Stream
Parkway, Malvern, PA 19355, Attention: Chief Financial Officer or at such other
address for notice as the Borrower shall last have furnished in writing to the
Agent; and
(b) if to the Agent, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Structured Real Estate, and to 115 Perimeter
Center Place, N.E., Suite 500, Atlanta, Georgia 30346, Attn: Lori Y. Litow,
Director, or such other address for notice as the Agent shall last have
furnished in writing to the Borrower.
(c) if to any Lender, at such Lender's address set forth on
Schedule 1, hereto, or such other address for notice as such Lender shall have
last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. All notices given to the
Borrower shall also be deemed to have been given to each of the Co-Borrowers,
and all notices given by the Borrower shall also be deemed to have been given by
each of the Co-Borrowers.
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ss.20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. This
agreement and each of the other Loan Documents, except as otherwise specifically
provided therein, and the rights and obligations of the parties hereunder shall
be construed and interpreted in accordance with the laws of the Commonwealth of
Massachusetts (excluding the laws applicable to conflicts or choice of law). THE
BORROWER AND EACH CO-BORROWER AGREES THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT ONLY IN THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN
AND BORROWER AND EACH CO-BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT FOR ANY SUIT BY AGENT OR ANY LENDER AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN
ss.19. THE BORROWER AND EACH CO-BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT
SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
ss.21. HEADINGS. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
ss.22. COUNTERPARTS. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
ss.23. ENTIRE AGREEMENT. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in ss.25.
ss.24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. THE BORROWER AND
EACH CO-BORROWER, THE AGENT AND EACH LENDER MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF AGENT OR ANY
LENDER RELATING TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE LOAN
DOCUMENTS, AND AGREE THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT
AS PROHIBITED BY LAW, BORROWER AND EACH CO-BORROWER HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. BORROWER AND EACH CO-BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDERS TO
PROVIDE THE COMMITMENTS AND MAKE THE LOANS.
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ss.25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Agreement may be given, and any term of this
Agreement or of any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower of any terms of this
Agreement or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Requisite Lenders, and, in the case of amendments, with the written consent of
the Borrower other than amendments to schedules made in the ordinary course as
contemplated by this Agreement. Notwithstanding the foregoing, (i) the rate of
interest on and the term or amount of the Notes, (ii) the amount of the
Commitments of the Lenders (other than changes in Commitments pursuant to
Assignments under ss.18 or pursuant to changes in the Total Commitment under
ss.2.2), (iii) the amount of any fee payable to a Lender hereunder, (iv) any
provision herein or in any of the Loan Documents which expressly requires
consent of all the Lenders, (v) the funding provisions of ss.2.5 and ss.2.7
hereof, (vi) the rights, duties and obligations of the Agent specified in ss.14
hereof, and (vii) the definition of Requisite Lenders, may not be amended
without the written consent of each Lender affected thereby, nor may the Agent
release the Borrower, any Co-Borrower or the Company from its liability with
respect to the Obligations, without first obtaining the written consent of all
the Lenders. Each Lender shall respond to any request for a consent pursuant to
this ss.25 within ten (10) Business Days after the notice from the Agent or the
Borrower setting forth such request. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
ss.26. SEVERABILITY. The provisions of this Agreement are severable,
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
ss.27. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that: (i)
neither the Agent nor any Lender has any fiduciary relationship with, or
fiduciary duty to, the Borrower arising out of or in connection with this
Agreement or any of the other Loan Documents; (ii) the relationship in
connection herewith between the Agent and the Lenders, on the one hand, and the
Borrower, on the other hand, is solely that of debtor and creditor and (iii) no
joint venture or partnership among any of the parties hereto is created hereby
or by the other Loan Documents, or otherwise exists by virtue of the Facility or
the Loans.
75
ss.28. CO-BORROWER PROVISIONS. The Borrower and each Co-Borrower
acknowledges that their joint and several liability with respect to the
Obligations could be construed to consist, at least in part, of a guaranty of
obligations of the Borrower and the other Co-Borrowers under the Loans and, in
full recognition of that fact, Borrower and each Co-Borrower consents and agrees
as hereinafter set forth in this ss.28. In the event that any of the
Indebtedness or Obligations of the Borrower or any Co-Borrower are construed to
consist of a guaranty, the consents, waivers, and agreements of the Borrower and
the Co-Borrowers that are contained in this ss.28 are intended to deal with the
suretyship aspects of the transactions evidenced by the Loan Documents.
ss.28.1. Joint Benefit. Each Co-Borrower represents to Agent and each
Lender that each Co-Borrower will receive direct and indirect benefits from the
availability of the Loans, and from the ability to access the collective credit
resources of Co-Borrowers. Each Co-Borrower irrevocably authorizes the Borrower
to act on its behalf in requesting, authorizing, and directing the use of the
proceeds of the Loan, and each Co-Borrower agrees to be bound by the acts of the
Borrower in connection with the Loan Documents. It is expressly understood by
each Co-Borrower that Agent and Lenders shall have no responsibility to inquire
into the apportionment, allocation or disposition of any Loans among the
Borrower and the Co-Borrowers; that all Loans or other credit accommodations are
made for the account of the Borrower and the Co-Borrowers; that the handling of
the Facility on a joint borrowing basis is solely as an accommodation to the
Borrower and the Co-Borrowers; and neither Agent nor Lenders shall incur any
liability to any Co-Borrower as a result thereof.
ss.28.2. Duty to Keep Informed. Each Co-Borrower is, and at all times
shall be, jointly and severally liable for each and every one of the
Obligations, regardless of which of the Borrower or Co-Borrowers requested,
received, used, or directly enjoyed the benefit of, the extensions of credit
hereunder. The Borrower and each Co-Borrower hereby agrees to keep the Borrower
and each other Co-Borrower fully apprised at all times as to the status of its
business, affairs, finances, and financial condition, and its ability to repay
and to perform the Obligations under the Loan Documents, and in particular as to
any adverse developments with respect thereto. The Borrower and each Co-Borrower
hereby agrees to undertake to keep itself apprised at all times as to the status
of the business, affairs, finances, and financial condition of the Borrower and
each other Co-Borrower, and of the ability of the Borrower and each other
Co-Borrower to repay and to perform the Obligations under the Loan Documents,
and in particular as to any adverse developments with respect to any thereof.
The Borrower and each Co-Borrower hereby agrees, in light of the foregoing
mutual covenants to inform each other, and to keep themselves and each other
informed as to such matters, that neither Agent nor Lenders shall have any duty
to inform the Borrower or any Co-Borrower of any information pertaining to the
business, affairs, finances, or financial condition of the Borrower or any other
Co-Borrower, or pertaining to the ability of the Borrower or any other
Co-Borrower to repay and to perform the Obligations under the Loan Documents,
even if such information is adverse. To the fullest extent permitted by
applicable law, the Borrower and each Co-Borrower hereby expressly waives any
duty of Agent or Lenders to inform the Borrower or any Co-Borrower of any such
information.
76
ss.28.3. Consents. Borrower and each Co-Borrower hereby consents and
agrees that Agent and Lenders may at any time, and from time to time, without
thereby releasing Borrower or any Co-Borrower from any liability hereunder and
without notice to or further consent any Co-Borrower, either with or without
consideration: modify the terms of the Notes or the Loan Documents; extend or
renew the Notes for any period; grant releases, compromises and indulgences with
respect to the Notes or the Loan Documents and to any persons or entities now or
hereafter liable thereunder or hereunder; release any other Co-Borrower, surety,
endorser or accommodation party of the Notes or any other Loan Documents; or
take or fail to take any action of any type whatsoever. No such action which
Agent or any Lender shall take or fail to take in connection with the Notes or
the Loan Documents, or any of them, nor any course of dealing with Borrower or
any other person, shall release any Co-Borrower's obligations hereunder, or
afford any Co-Borrower any recourse against Agent or Lenders.
ss.28.4. Suretyship Waivers. Each Co-Borrower hereby agrees that its
obligations hereunder shall not be affected or impaired by, and hereby waives
and agrees not to assert or take advantage of any defense based on:
(a) any statute of limitations in any action hereunder or for the
collection of the Notes or for the payment or performance of any
obligation hereby guaranteed;
(b) the incapacity or lack of authority of Borrower or any other person
or entity;
(c) the dissolution or termination of existence of Borrower;
(d) the voluntary or involuntary liquidation, sale or other disposition
of all or substantially all of the assets of Borrower;
(e) the voluntary or involuntary receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, assignment,
composition, or readjustment of, or any similar proceeding affecting,
Borrower or any Co-Borrower, or any of Borrower's or any Co-Borrower's
properties or assets;
(f) the damage, destruction, condemnation, foreclosure or surrender of
all or any part of the Unencumbered Properties or the improvements
thereon;
(g) the failure of Agent or Lenders to give notice of the existence,
creation or incurring of any new or additional indebtedness or
obligation or of any action or nonaction on the part of any other
person whomsoever in connection with any obligation hereby guaranteed;
(h) any failure or delay of Agent or Lenders to commence an action
against Borrower, to assert or enforce any remedies against Borrower
under the Notes or the Loan Documents, or to realize upon any security;
77
(i) any failure of any duty on the part of Agent or Lenders to disclose
to any Co-Borrower any facts it may now or hereafter know regarding
Borrower, whether such facts materially increase the risk to such
Co-Borrower or not;
(j) failure to accept or give notice of acceptance of this Agreement or
any Note by Agent or Lenders;
(k) failure to make or give notice of presentment and demand for
payment of any of the indebtedness or performance of any of the
obligations hereby guaranteed;
(l) failure to make or give protest and notice of dishonor or of
default to any Co-Borrower or to any other party with respect to the
indebtedness or performance of obligations hereby guaranteed;
(m) any and all other notices whatsoever to which any Co-Borrower might
otherwise be entitled;
(n) any lack of diligence by Agent or Lenders in collection of
obligations hereby guaranteed;
(o) the invalidity or unenforceability of the Notes or any of the Loan
Documents;
(p) the compromise, settlement, release or termination of any or all of
the obligations of Borrower under the Notes or the Loan Documents;
(q) any exculpation of liability contained in the Notes or in the Loan
Documents;
(r) any transfer by Borrower or any of its subsidiaries of all or any
part of their assets;
(s) to the full extent permitted by law any and all other legal,
equitable or surety defenses whatsoever to which any Co-Borrower might
otherwise be entitled, it being the intention that the obligations of
all Co-Borrowers hereunder are absolute, unconditional and irrevocable.
78
ss.28.5. Subordination Each Co-Borrower hereby subordinates
any and all indebtedness of Borrower now or hereafter owed to such Co-Borrower
to all indebtedness of Borrower to the Agent and Lenders, and agrees with the
Agent and Lenders that (a) such Co-Borrower shall not demand or accept any
payment from Borrower on account of such indebtedness, (b) such Co-Borrower
shall not claim any offset or other reduction of such Co-Borrower's obligations
hereunder because of any such indebtedness, and (c) such Co-Borrower shall not
take any action to obtain any interest in any of the assets of Borrower because
of any such indebtedness; provided, however, that, if the Agent so requests,
such indebtedness shall be collected, enforced and received by the applicable
Co-Borrower as trustee for the Agent and be paid over to the Agent on account of
the indebtedness of Borrower to the Lenders, but without reducing or affecting
in any manner the liability of such Co-Borrower under the other provisions of
this Agreement or any Note except to the extent the principal amount of such
outstanding indebtedness shall have been reduced by such payment.
79
IN WITNESS WHEREOF, the undersigned have duly executed this
Credit Agreement as a sealed instrument as of the date first set forth above.
WITNESS: LIBERTY PROPERTY TRUST
By: /s/ GEORGE J. ALBURGER, JR
- -------------------------------- ---------------------------------------
George J. Alburger, Jr.
Its Executive Vice President and Chief
Financial Officer
LIBERTY PROPERTY LIMITED
PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
By: /s/ GEORGE J. ALBURGER, JR.
- -------------------------------- ---------------------------------------
George J. Alburger, Jr.
Its Executive Vice President and Chief
Financial Officer
FLEET NATIONAL BANK
as Agent
By: /s/ LORI Y. LITOW
- -------------------------------- ---------------------------------------
Lori Y. Litow
Its Director
Co-Borrowers:
LIBERTY PROPERTY DEVELOPMENT CORP. LIBERTY PROPERTY DEVELOPMENT CORP. II
By: /s/ GEORGE J. ALBURGER, JR. By: /s/ GEORGE J. ALBURGER, JR.
---------------------------- ---------------------------------------
George J. Alburger, Jr., George J. Alburger, Jr.,
Its Executive Vice President Its Executive Vice President
LIBERTY 2001 CORP. LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP
By: LIBERTY PROPERTY PHILADELPHIA CORPORATION,
its general partner
By: /s/ GEORGE J. ALBURGER, JR.
----------------------------
George J. Alburger, Jr.,
Its Executive Vice President By: /s/ GEORGE J. ALBURGER, JR.
--------------------------------------------
George J. Alburger, Jr., Its Executive Vice
President and Chief Financial Officer
LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP II LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP III
By: LIBERTY PROPERTY PHILADELPHIA TRUST, By: LIBERTY PROPERTY PHILADELPHIA TRUST, its general
its general partner its general partner
By: /s/ GEORGE J. ALBURGER, JR. By: /s/ GEORGE J. ALBURGER, JR.
--------------------------------------------- ---------------------------------------------
George J. Alburger, Jr., Its Executive Vice George J. Alburger, Jr., Its Executive Vice
President and Chief Financial Officer President and Chief Financial Officer
LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP IV EAST LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP IV WEST
By: LIBERTY PROPERTY PHILADELPHIA CORPORATION IV EAST, By: LIBERTY PROPERTY PHILADELPHIA CORPORATION IV WEST,
its general partner its general partner
By: /s/ GEORGE J. ALBURGER, JR. By: /s/ GEORGE J. ALBURGER, JR.
--------------------------------------------- ---------------------------------------------
George J. Alburger, Jr., Its Executive Vice George J. Alburger, Jr., Its Executive Vice
President and Chief Financial Officer President and Chief Financial Officer
LIBERTY PROPERTY SCOTTSDALE LIMITED PARTNERSHIP LAND HOLDINGS REALTY LLC
By: LIBERTY SPECIAL PURPOSE TRUST, its general partner By: LIBERTY PROPERTY LIMITED PARTNERSHIP, its sole member
By: LIBERTY PROPERTY TRUST, its general partner
By: /s/ GEORGE J. ALBURGER, JR. By: /s/ GEORGE J. ALBURGER, JR.
--------------------------------------------- ---------------------------------------------
George J. Alburger, Jr., Its Executive Vice George J. Alburger, Jr., Its Executive Vice
President and Chief Financial Officer President and Chief Financial Officer
RIVERS BUSINESS COMMONS ASSOCIATES LIMITED PARTNERSHIP LP MALVERN LIMITED PARTNERSHIP
By: LIBERTY PROPERTY LIMITED PARTNERSHIP, By: LP MALVERN LLC, its general partner
its general partner By: LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP,
By: LIBERTY PROPERTY TRUST, its general partner its sole Member
By: LIBERTY PROPERTY PHILADELPHIA CORPORATION,
its general partner
By: /s/ GEORGE J. ALBURGER, JR. By: /s/ GEORGE J. ALBURGER, JR.
--------------------------------------------- ---------------------------------------------
George J. Alburger, Jr., Its Executive Vice George J. Alburger, Jr., Its Executive Vice
President and Chief Financial Officer President and Chief Financial Officer
FLEET NATIONAL BANK
By: /s/ LORI Y. LITOW
--------------------
Lori Y. Litow
Its Director
Commitment: $33,000,000
Commitment Percentage: 11%
Notice Address: Fleet National Bank
100 Federal Street
Boston, MA 02110
Attn: Real Estate Department
With a copy to:
Fleet National Bank
115 Perimeter Center Place, Suite 500
Atlanta, GA 30346
Attn: Lori Y. Litow, Director
Tele: (770)390-6544
Fax: (770)390-8434 or 391-9811
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ CINDY BEAN
-------------------
Cindy Bean
Its Vice President
Commitment: $30,000,000
Commitment Percentage: 10%
Notice Address: Wachovia Bank, National Association
301 S. College Street, NC0172
Charlotte, NC 28288
Attn: David Hoagland, Vice President
Tele: (704)374-4809
Fax: (704)383-6205
With a copy to:
Wachovia Bank, National Association
201 S. College Street, NC5708
Charlotte, NC 28288
Attn: Joy Auten, Officer
Tele: (704)715-1381
Fax: (704)383-7989
BANK ONE, N.A.
By: /s/ DENNIS J. REDPATH
-----------------------------
Dennis J. Redpath
Its Director, Capital Markets
Commitment: $30,000,000
Commitment Percentage: 10%
Notice Address: Bank One, N.A.
One Bank One Plaza
Suite IL1-0315
Chicago, Il 60670-0315
Attn: Dennis J. Redpath, Director, Capital Markets
Tele: (312)732-3044
Fax: (312)732-5939
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ CHARLES J. COOKE
-----------------------------
Charles J. Cooke
Its Vice President
Commitment: $30,000,000
Commitment Percentage: 10%
Notice Address: Wells Fargo Bank, National Association
Two Logan Square
100-200 N 18th Street, Suite 1750
Philadelphia, PA 19103
Attn: Charles J. Cooke, Vice President
Tele: (215)640-3924
Fax: (215)561-3812
With a copy to:
Wells Fargo Bank, National Association
2120 East Park Place, #100
El Segundo, CA 90245
Attn: Puree Rhein, Disbursement Admn.
Tele: (310)335-9473
Fax: (310)615-1014
PNC BANK, NATIONAL ASSOCIATION
By: /s/ DAVID CURRAN
-----------------------------
David Curran
Its Vice President
Commitment: $35,000,000
Commitment Percentage: 11.66666667%
Notice Address: PNC Bank, National Association.
1600 Market Street, 30th Floor
Philadelphia, PA 19103
Attn: David Curran, Vice President
Tele: (215)585-7707
Fax: (215)585-5806
SUNTRUST BANK
By: /s/ BLAKE K. THOMPSON
-----------------------------
Blake K. Thompson
Its Vice President
Commitment: $35,000,000
Commitment Percentage: 11.66666667%
Notice Address: SunTrust Bank
8245 Boone Blvd., Suite 820
Vienna, VA 22182
Attn: Blake K. Thompson, Vice President
Tele: (703)902-9044
Fax: (703)902-9245
With a copy to:
SunTrust Bank
8245 Boone Blvd., Suite 820
Vienna, VA 22182
Attn: Nazmia Sediqi, Administrative Assistant
Tele: (703)902-9048
Fax: (703)902-9245
SOUTHTRUST BANK
By: /s/ SIDNEY CLAPP
------------------------------
Sidney Clapp
Its Assistant Vice President
Commitment: $30,000,000
Commitment Percentage: 10%
Notice Address: SouthTrust Bank
420 North 20th Street
Mail Code: A-001-TW-1105
Birmingham, AL 35203
Attn: Sidney Clapp, Assistant Vice President
Tele: (205)254-4183
Fax: (205)254-8270
With a copy to:
SouthTrust Bank
6434 1st Avenue, North
Mail Code: A-001-LO-0108
Birmingham, AL 35212
Attn: Christine Glidewell, Loan Operations
Tele: (205)599-5446
Fax: (205)599-4350
CHEVY CHASE BANK, FSB
By: /s/ J. JORDAN O'NEILL, III
------------------------------
J. Jordan O'Neill, III
Its Vice President
Commitment: $22,000,000
Commitment Percentage: 7.33333333%
Notice Address: Chevy Chase Bank, FSB
7501 Wisconsin Avenue, 12th Floor
Bethesda, MD 20814
Attn: J. Jordan O'Neill, III, Vice President
Tele: (240)497-7733
Fax: (240)497-7714
With a copy to:
Chevy Chase Bank, FSB
14601 Sweitzer Lane
Laurel, MD 20707
Attn: Doris Lakkis
Tele: (301)939-6966
Fax: (301)939-6959
CITIZENS BANK OF PENNSYLVANIA
By: /s/ KELLIE ANDERSON
------------------------------
Kellie Anderson
Its Vice President
Commitment: $20,000,000
Commitment Percentage: 6.66666667%
Notice Address: Citizens Bank of Pennsylvania
2001 Market Street, 6th Floor
Philadelphia, PA 19103
Attn: Kellie Anderson, Vice President
Tele: (267)671-1171
Fax: (215)751-1542
COMERICA BANK
By: /s/ SAM MEEHAN
------------------------------
Sam Meehan
Its Vice President
Commitment: $20,000,000
Commitment Percentage: 6.66666667%
Notice Address: Comerica Bank
500 Woodward Avenue,
7th Floor MC 3256
Detroit, MI 48226
Attn: Sam Meehan, Vice President
Tele: (313)222-5461
Fax: (313)222-9295
With a copy to:
Comerica Bank
500 Woodward Avenue
7th Floor MC 3256
Detroit, MI 48226
Attn: Betsy Branson, Customer Assistant
Tele: (313)222-5878
Fax: (313)222-3697
ALLFIRST BANK
By: /s/ BARBARA SIMMONS
------------------------------
Barbara Simmons
Its Senior Vice President
Commitment: $15,000,000
Commitment Percentage: 5%
Notice Address: Allfirst Bank
25 South Charles Street
Baltimore, MD 21201
Attn: Barbara Simmons, Senior Vice President
Tele: (410)545-2454
Fax: (410)545-2385
With a copy to:
Allfirst Bank
25 South Charles Street
Baltimore, MD 21201
Attn: Wendy Kupnicki, Officer
Tele: (410)545-2474
Fax: (410)545-2385
Exhibit A
---------
FORM OF NOTE
------------
No. ___
[Amount] [Date]
FOR VALUE RECEIVED, the undersigned, Liberty Property Limited
Partnership, a Pennsylvania limited partnership (the "Borrower") and each of the
undersigned Co-Borrowers, jointly and severally, promises to pay, without offset
or counterclaim, to the order of [Name of Lender] (hereinafter, together with
its successors in title and assigns, called the "Lender") at the head office of
Fleet National Bank, as Agent (the "Agent") at 100 Federal Street, Boston,
Massachusetts 02110, the principal sum of [Amount in Words][Amount in Numbers]
or, if less, the aggregate unpaid principal amount of all Loans made by the
Lender to the Borrower pursuant to the Credit Agreement dated as of January 16,
2003 among the Lender, the Borrower, Liberty Property Trust, the other lending
institutions named therein and the Agent, as amended from time to time (the
"Credit Agreement"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement. Unless
otherwise provided herein, the rules of interpretation set forth in ss.1.2 of
the Credit Agreement shall be applicable to this Note.
Each of the Borrower and the Co-Borrowers also promises to pay (a)
principal from time to time at the times provided in the Credit Agreement and
(b) interest from the date hereof on the principal amount from time to time
unpaid at the rates and times set forth in the Credit Agreement and in all cases
in accordance with the terms of the Credit Agreement. Late charges and other
charges and default rate interest shall be paid by Borrower and the Co-Borrowers
in accordance with the terms of the Credit Agreement. The entire outstanding
principal amount of this Note, together with all accrued but unpaid interest
thereon, shall be due and payable in full on the Maturity Date. The Lender may
endorse the record relating to this Note with appropriate notations evidencing
advances and payments of principal hereunder as contemplated by the Credit
Agreement.
This Note is issued pursuant to, is entitled to the benefits of, and is
subject to the provisions of the Credit Agreement. The principal of this Note is
subject to prepayment in whole or in part in the manner and to the extent
specified in the Credit Agreement. The principal of this Note, the interest
accrued on this Note and all other Obligations of the Borrower and the
Co-Borrowers are full recourse obligations of the Borrower and the Co-Borrowers,
and all of their respective Real Estate Assets, and other properties shall be
available for the payment and performance of this Note, the interest accrued on
this Note, and all of such other Obligations. Notwithstanding anything to the
contrary contained herein, the trustees of Liberty Property Trust shall have no
personal liability of any nature under this document. The Agent and the Lender
shall look solely to the assets of Liberty Property Trust to satisfy any
liability or recourse against Liberty Property Trust hereunder.
In case an Event of Default shall occur and be continuing, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
The Borrower, the Co-Borrowers and all endorsers hereby waive
presentment, demand, protest and notice of any kind in connection with the
delivery, acceptance, performance and enforcement of this Note, and also hereby
assent to extensions of time of payment or forbearance or other indulgences
without notice.
This Note and the obligations of the Borrower and the Co-Borrowers
hereunder shall be governed by and interpreted and determined in accordance with
the laws of the Commonwealth of Massachusetts (excluding the laws applicable to
conflicts or choice of law). Each of the Borrower and the Co-Borrowers has
waived its right to a jury trial with respect to any action or claim arising out
of this Note pursuant to ss.24 of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower and the Co-Borrowers have caused this
Note to be duly executed in its name as an instrument under seal on the date
first above written.
Witness (to all signatures): LIBERTY PROPERTY LIMITED PARTNERSHIP
By: LIBERTY PROPERTY TRUST,
its general partner
By:
- ----------------------------------- --------------------------------------
George J. Alburger, Jr.,
Its Executive Vice President and Chief
Financial Officer
LIBERTY PROPERTY DEVELOPMENT CORP. LIBERTY PROPERTY DEVELOPMENT CORP. II
By: By:
----------------------------- ----------------------------
George J. Alburger, Jr., George J. Alburger, Jr.,
Its Executive Vice President Its Executive Vice President
LIBERTY 2001 CORP. LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP
By: LIBERTY PROPERTY PHILADELPHIA CORPORATION, its general
partner
By: By:
----------------------------- ----------------------------
George J. Alburger, Jr., George J. Alburger, Jr., Its Executive Vice President
Its Executive Vice President and Chief Financial Officer
LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP II LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP III
By: LIBERTY PROPERTY PHILADELPHIA TRUST, its general partner By: LIBERTY PROPERTY PHILADELPHIA TRUST, its general partner
By: By:
----------------------------- ----------------------------
George J. Alburger, Jr., Its Executive Vice President George J. Alburger, Jr., Its Executive Vice President
and Chief Financial Officer and Chief Financial Officer
LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP IV EAST LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP IV WEST
By: LIBERTY PROPERTY PHILADELPHIA CORPORATION IV EAST, its By: LIBERTY PROPERTY PHILADELPHIA CORPORATION IV WEST, its
general partner general partner
By: By:
----------------------------- ----------------------------
George J. Alburger, Jr., Its Executive Vice President George J. Alburger, Jr., Its Executive Vice President
and Chief Financial Officer and Chief Financial Officer
LIBERTY PROPERTY SCOTTSDALE LIMITED PARTNERSHIP LAND HOLDINGS REALTY LLC
By: LIBERTY SPECIAL PURPOSE TRUST, its general partner By: LIBERTY PROPERTY LIMITED PARTNERSHIP, its sole member
By: LIBERTY PROPERTY TRUST, its general partner
By: . By:
----------------------------- ----------------------------
George J. Alburger, Jr., Its Executive Vice President George J. Alburger, Jr., Its Executive Vice President
and Chief Financial Officer and Chief Financial Officer
RIVERS BUSINESS COMMONS ASSOCIATES LIMITED PARTNERSHIP LP MALVERN LIMITED PARTNERSHIP
By: LIBERTY PROPERTY LIMITED PARTNERSHIP, its general partner By: LP MALVERN LLC, its general partner
By: LIBERTY PROPERTY TRUST, its general partner By: LIBERTY PROPERTY PHILADELPHIA LIMITED PARTNERSHIP, its
sole Member
By: LIBERTY PROPERTY PHILADELPHIA CORPORATION, its general
partner
By: By:
----------------------------- ----------------------------
George J. Alburger, Jr., Its Executive Vice President George J. Alburger, Jr., Its Executive Vice President
and Chief Financial Officer and Chief Financial Officer
Exhibit B
---------
LOAN REQUEST
------------
Liberty Property Limited Partnership
65 Valley Stream Parkway
Malvern, PA 19355
[Date]
Fleet National Bank, as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Loan Request under Credit Agreement dated as of January 16, 2003
----------------------------------------------------------------
Pursuant to ss.2.5 of the Credit Agreement dated as of January 16,
2003, among you, Borrower, the Co-Borrowers named therein, Liberty Property
Trust, certain other Lenders and us (the "Credit Agreement"), we hereby request
that the Lenders make a Loan as follows:
(i) Principal amount requested: $
(ii) Proposed Borrowing Date:
(iii) Interest Period:
(iv) Type:
This Loan Request is submitted pursuant to, and shall be governed by,
and subject to satisfaction of, the terms, conditions and provisions set forth
in ss.2.5 of the Credit Agreement.
The undersigned hereby further certifies to you that it is in
compliance with the covenants specified in ss.9.1 through ss.9.8 of the Credit
Agreement, and will remain in compliance with such covenants after the making of
the requested Loan, as evidenced by a Compliance Certificate in the form of
Exhibit C to the Credit Agreement of even date herewith delivered to you
simultaneously with this Loan Request.
We also understand that if you grant this request this request
obligates us to accept the requested Loan on such date. All terms defined in the
Credit Agreement and used herein without definition shall have the meanings set
forth in ss.1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the
provisions of ss.11.1 of the Credit Agreement, that the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed Borrowing Date of the Loan requested hereby,
in each case except as otherwise permitted pursuant to the provisions of ss.11.1
of the Credit Agreement, and no Default or Event of Default has occurred and is
continuing.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
Its general partner
By:_______________________________
_______________________________
Its:_____________________________
Exhibit C
---------
Liberty Property Limited Partnership
65 Valley Stream Parkway
Malvern, PA 19355
Compliance Certificate under
Credit Agreement dated as of January 16, 2003
The undersigned, a Responsible Officer of Liberty Property Trust,
general partner of Liberty Property Limited Partnership (the "Borrower"), hereby
certifies on behalf of the Borrower as of the date hereof the following:
1. No Defaults. I have read a copy of the Credit Agreement dated as of
January 16, 2003 (the "Credit Agreement") among the Borrower, the Co-Borrowers
named therein, Liberty Property Trust, Fleet National Bank, the other lending
institutions party thereto, and Fleet National Bank, as Agent. Terms used herein
and not otherwise defined herein shall have the meanings set forth in ss.1.1 of
the Credit Agreement. No Default is continuing in the performance or observance
of any of the covenants, terms or provisions of the Credit Agreement or any of
the other Loan Documents. Without limiting the foregoing, the Borrower has not
taken any actions which are prohibited by the negative covenants set forth in
ss.8 of the Credit Agreement. Attached hereto as Appendix I are all relevant
calculations needed to determine whether the Borrower is in compliance with
ss.9.1 through ss.9.8, inclusive, and ss.8.2(g) of the Credit Agreement as of
the end of the most recently completed fiscal quarter (except that in the case
of Compliance Certificates delivered pursuant to ss.2.5(a), ss.2.9(a),
ss.2.10(k), ss.11.1 or ss.7.13, the calculations determining compliance with
ss.9.1, ss.9.2 and ss.9.3 are based on amounts of Unsecured Indebtedness, Pro
Forma Principal Amount and Total Debt which have been computed on a pro forma
basis after giving effect to the proposed transaction and, if the list of
Unencumbered Properties and Unencumbered Development Properties attached hereto
has been updated since the list attached to the most recent Compliance
Certificate delivered pursuant to ss.7.4(d), Value of All Unencumbered
Properties and Unencumbered Net Operating Income have been computed on the basis
of such updated list) and is in compliance with ss.8.7 of the Credit Agreement
for the most recently completed fiscal year and over the three most recently
completed fiscal quarters.
2. No Material Changes, Etc. Except as disclosed on Appendix II hereto,
since the [date of most recent financial statements furnished to the Agent and
the Lenders], there have occurred no materially adverse changes in the financial
condition or business of the Borrower as shown on or reflected in the balance
sheet of the Borrower as at such date other than (a) changes in the ordinary
course of business that have not had any materially adverse effect either
individually or in the aggregate on the business or financial condition of the
Borrower and (b) changes resulting from the making of the Loans and the
transactions contemplated by the Credit Agreement.
3. No Materially Adverse Contracts, Etc. Neither the Borrower nor the
Company is subject to any charter, corporate, trust, partnership or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected, in the reasonable judgment of the Company's officers, in the future to
have a Materially Adverse Effect. Neither the Borrower nor the Company is a
party to any contract or agreement that has or is expected, in the reasonable
judgment of the Company's officers, to have a Materially Adverse Effect.
4. [Include for Compliance Certificates delivered pursuant to ss.7.4(d)
and ss.7.13 and for other Compliance Certificates as described in ss.5.1].
Attached hereto as Appendix III is a list of the Unencumbered Properties as of
____________. The Borrower certifies that each of the Real Estate Assets listed
on Appendix III satisfied on said date each of the conditions set forth in the
definition of Unencumbered Property, except to the extent that waivers may have
been granted pursuant to ss.5.2. Appendix III lists for each Unencumbered
Property its street address, name of the owner, type (office or industrial),
number of square feet and number of leased square feet.
Liberty Property Limited Partnership
By: Liberty Property Trust,
Its general partner
By:_______________________________
_______________________________
Its:___________________________
Date:
Exhibit D
---------
SWINGLINE LOAN REQUEST
----------------------
Liberty Property Limited Partnership
65 Valley Stream Parkway
Malvern, PA 19355
[Date]
Fleet National Bank, as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Swingline Loan Request under Credit Agreement dated as of
January 16, 2003
---------------------------------------------------------
Pursuant to ss.2.8(b) of the Credit Agreement dated as of January 16,
2003, among you, Borrower, the Co-Borrowers named therein, Liberty Property
Trust, certain other Lenders and us (the "Credit Agreement"), we hereby request
that the Swingline Lender make a Swingline Loan as follows:
(i) Principal amount requested: $
(ii) Proposed Borrowing Date:
This Swingline Loan Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in ss.2.8 of the Credit Agreement. As provided therein, all
Swingline Loans are Base Rate Loans.
The undersigned hereby further certifies to you that it is in
compliance with the covenants specified in ss.9.1 through ss.9.8 of the Credit
Agreement, and will remain in compliance with such covenants after the making of
the requested Swingline Loan.
We also understand that if you grant this request this request
obligates us to accept the requested Swingline Loan on such date. All terms
defined in the Credit Agreement and used herein without definition shall have
the meanings set forth in ss.1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the
provisions of ss.11.1 of the Credit Agreement, that the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed Borrowing Date of the Swingline Loan requested
hereby, in each case except as otherwise permitted pursuant to the provisions of
ss.11.1 of the Credit Agreement, and no Default or Event of Default has occurred
and is continuing.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
Its general partner
By:_______________________________
_______________________________
Its:___________________________
EXHIBIT E
---------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated
Reference is made to the Credit Agreement dated as of January 16, 2003
(as amended and in effect from time to time, the "Agreement"), among Liberty
Property Limited Partnership, a Pennsylvania limited partnership (the
"Borrower"), the Co-Borrowers named therein, Liberty Property Trust, a Maryland
trust (the "Company") Fleet National Bank, the other Lenders and Fleet National
Bank as agent (the "Agent") for itself and the other Lenders. Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Agreement.
_____________________ (the "Assignor") and
_____________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as hereinafter defined) a portion of the Assignor's rights and obligations
under the Agreement which relates to $________________ of the Assignor's
Commitment and a Commitment Percentage of _____% of all Loans outstanding as of
the Effective Date.
2. The Assignor (i) represents that as of the date hereof, its
Commitment (without giving effect to this Assignment or any other assignments by
Assignor effective on the Effective Date (the "Simultaneous Assignments")) is
$__________ and its Commitment Percentage with respect thereto is %, and the
outstanding balance of its Loans (unreduced by any assignments thereof pursuant
to this Assignment or the Simultaneous Assignments) is $__________; (ii) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement, the other Loan Documents or any other
instrument or document furnished pursuant thereto, other than that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of its Subsidiaries or any other
person which may be primarily or secondarily liable in respect of any of the
Obligations or any of their obligations under the Agreement or the other Loan
Documents or any other instrument or document delivered or executed pursuant
thereto; (iv) represents and warrants that it is legally authorized to enter
into this Assignment and Acceptance; (v) represents and warrants that to the
best of Assignor's knowledge no Event of Default has occurred and is continuing
on the date hereof; and (vi) attaches the $_______________ Note delivered to it
under the Agreement and requests that the Borrower exchange such Note for new
Notes executed by Borrower and the Co-Borrowers and payable to each of the
Assignor and/or to the assignees pursuant to the Simultaneous Assignments and
the Assignee as follows:
Notes Payable to Amount
the Order of: of Note
- ------------- -------
[Name of Assignor or assignees pursuant [($ )]
Simultaneous Assignments]
[Name of Assignee] [($ )]
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Agreement, together with copies of the most recent
financial statements delivered pursuant to ss.ss.6.4 and 7.4 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (iii)
agrees that it will, independently and without reliance upon the Assignor, any
other Lender or the Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
and review and analysis of the value of any Properties in taking or not taking
action under the Agreement; (iv) confirms that it is an Eligible Assignee; (v)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers as are reasonably incidental thereto pursuant to the
terms of the Agreement and the other Loan Documents; and (vi) agrees that it
will perform all the obligations which by the terms of the Agreement are
required to be performed by it as a Lender in accordance with the terms of the
Agreement.
4. The effective date for this Assignment and Acceptance shall be
_____________________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance and
recording in the Register by the Agent. This Assignment and Acceptance may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Assignment and
Acceptance it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom enforcement is sought.
5. Upon such acceptance and recording, from and after the Effective
Date, (i) the Assignee shall be a party to the Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder, and (ii) the Assignor shall, with respect to that portion of
its interest under the Agreement assigned hereunder relinquish its rights and be
released from its obligations under the Agreement.
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the interest assigned
hereby (including payments of principal, interest, fees and other amounts) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments for periods prior to the Effective Date by the Agent or with respect
to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS.
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
[NAME OF ASSIGNOR]
By:_____________________________
Title:__________________________
[NAME OF ASSIGNEE]
By:
Title:
Exhibit F
---------
LETTER OF CREDIT REQUEST
------------------------
Liberty Property Limited Partnership
65 Valley Stream Parkway
Malvern, PA 19355
[Date]
Fleet National Bank, as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Letter of Credit Request under Credit Agreement dated as of
January 16, 2003
-----------------------------------------------------------
Pursuant to ss.2.9 of the Credit Agreement dated as of January 16,
2003, among you, the Co-Borrowers named therein, Liberty Property Trust, certain
other Lenders and us (the "Credit Agreement"), we hereby request that you issue
a Letter of Credit as follows:
(i) Name and address of beneficiary:
(ii) Face amount: $
(iii) Proposed Issuance Date: _______________________
Proposed Expiration Date: _____________________
(iv) Other terms and conditions as set forth in the proposed form
of Letter of Credit attached hereto.
(v) Purpose of Letter of Credit:
This Letter of Credit Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in ss.2.9 of the Credit Agreement.
The undersigned hereby further certifies to you that it is in
compliance with the covenants specified in ss.9.1 through ss.9.8 of the Credit
Agreement, and will remain in compliance with such covenants after the
outstanding balance of the Loans is adjusted to include the face amount of the
requested Letter of Credit, as evidenced by a Compliance Certificate in the form
of Exhibit C to the Credit Agreement of even date herewith delivered to you
simultaneously with this Letter of Credit Request.
We also understand that if you grant this request this request
obligates us to accept the requested Letter of Credit and pay the issuance fee
and Letter of Credit fee as required by ss.2.9(c). All terms defined in the
Credit Agreement and used herein without definition shall have the meanings set
forth in ss.1.1 of the Credit Agreement.
The undersigned hereby certifies to you, in accordance with the
provisions of ss.11.1 of the Credit Agreement, that the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed issuance date of the Letter of Credit
requested hereby, in each case except as otherwise permitted pursuant to the
provisions of ss.11.1 of the Credit Agreement, and no Default or Event of
Default has occurred and is continuing.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
Its general partner
By:_______________________________
_______________________________
Its:___________________________
Exhibit G
---------
LETTER OF CREDIT APPLICATION FORM
---------------------------------
Exhibit H
---------
Competitive Bid Quote Request
-----------------------------
Liberty Property Limited Partnership
65 Valley Stream Parkway
Malvern, PA 19355
[Date]
Fleet National Bank, as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Competitive Bid Quote Request under Credit Agreement dated as of
January 16, 2003
----------------------------------------------------------------
Pursuant to ss.2.10 of the Credit Agreement dated as of January 16,
2003, among you, Borrower, the Co-Borrowers named therein, Liberty Property
Trust, certain other Lenders and us (the "Credit Agreement"), we hereby request
that the Agent obtain quotes for Competitive Bid Loans based upon the following:
1. The requested Borrowing Date of the Competitive Bid Loans shall be
__________________, 20___.
2. The aggregate amount of the Competitive Bid Loans shall be $_______________.
3. The duration of the Interest Period applicable hereto shall be
_______________.
This Competitive Bid Quote Request is submitted pursuant to, and shall be
governed by, and subject to satisfaction of, the terms, conditions and
provisions set forth in ss.2.10 of the Credit Agreement.
The undersigned hereby further certifies to you that it is in
compliance with the covenants specified in ss.9.1 through ss.9.8 of the Credit
Agreement, and will remain in compliance with such covenants after the making of
the requested Competitive Bid Loans, as evidenced by a Compliance Certificate in
the form of Exhibit C to the Credit Agreement of even date herewith delivered to
you simultaneously with this Competitive Bid Quote Request.
The undersigned hereby certifies to you, in accordance with the
provisions of ss.11.1 of the Credit Agreement, that the representations and
warranties contained in the Credit Agreement and in each document and instrument
delivered pursuant to or in connection therewith were true as of the date as of
which they were made, are also true at and as of the date hereof, and will also
be true at and as of the proposed Borrowing Date of the Competitive Bid Loans
requested hereby, in each case except as otherwise permitted pursuant to the
provisions of ss.11.1 of the Credit Agreement, and no Default or Event of
Default has occurred and is continuing.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
Its general partner
By:_______________________________
_______________________________
Its:___________________________
Exhibit I
---------
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
_______________, 20___
To: Each Lender that is a party to the Credit Agreement identified below
Re: Invitation for Competitive Bid Quotes
Reference is hereby made to that certain Credit Agreement (as amended
and in effect from time to time, the "Credit Agreement") among Liberty Property
Limited Partnership, a Pennsylvania limited partnership (the "Borrower"), the
Co-Borrowers named therein, Liberty Property Trust, Fleet National Bank, the
other Lenders and Fleet National Bank as agent (the "Agent") for itself and the
other Lenders. Capitalized terms which are used herein without definition and
which are defined in the Credit Agreement shall have the same meanings herein as
in the Credit Agreement.
Pursuant to ss.2.10 of the Credit Agreement, you are invited to submit
a competitive bid quote to the Borrower for the following proposed Competitive
Bid Loan(s):
- --------------------------------------------------------------------------------
Requested Borrowing Date Principal Amount Interest Period
- -------------------------- ---------------------- ------------------------------
- -------------------------- ---------------------- ------------------------------
- --------------------------------------------------------------------------------
All Competitive Bid Quotes should specify a Competitive Bid Margin and
must be submitted to the Agent by facsimile transmission at its offices as
specified in or pursuant to ss.19 of the Credit Agreement not later than (a)
10:00 a.m. (Boston time) on the third LIBOR Business Day prior to the proposed
Borrowing Date. Quotes received after these deadlines will not be forwarded to
the Borrower.
Submitted bids must be for $1,000,000 or a larger multiple of $500,000
and may not exceed the aggregate principal amount of Competitive Bid Loans for
which offers were requested. All Competitive Bid Quotes should be submitted in
substantially the form of Exhibit J to the Credit Agreement. Please follow-up
your submitted written bids with telephone verification to confirm receipt.
Very truly yours,
Fleet National Bank, as Agent
By:__________________________________
Exhibit J
---------
FORM OF COMPETITIVE BID QUOTE
Fleet National Bank,
as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Re: Competitive Bid Quote to Liberty Property Limited Partnership
This Competitive Bid Quote is given in accordance with ss.2.10 of the
certain Credit Agreement (as amended and in effect from time to time, the
"Credit Agreement") among Liberty Property Limited Partnership, a Pennsylvania
limited partnership (the "Borrower"), the Co-Borrowers named therein, Liberty
Property Trust, Fleet National Bank, the other Lenders and Fleet National Bank
as agent (the "Agent") for itself and the other Lenders. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement.
In response to the Competitive Bid Quote Request of the Borrower dated
_________________, 20___, we hereby make the following Competitive Bid Quote on
the following terms:
1. Quoting Lender: _____________________
2. Person to contact at Quoting Lender: _______________
3. Borrowing Date: _____________________
4. We hereby offer to make Competitive Bid Loan(s) in the following
maximum principal amounts for the following Interest Period(s) and at the
following rates:
- ----------------------------------------------------------------------------------------------------------------------
Maximum Principal Amount Interest Period Competitive Bid Margin
- ---------------------------------------- -------------------------------------- --------------------------------------
- ---------------------------------------- -------------------------------------- --------------------------------------
- ---------------------------------------- -------------------------------------- --------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) [is][are] accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
By: ____________________________
Name:
Title:
Dated: __________________
Exhibit K
---------
FORM OF NOTICE OF ACCEPTANCE OR
NON-ACCEPTANCE OF COMPETITIVE BID QUOTE(S)
Fleet National Bank, as Agent
100 Federal Street
Boston, MA 02110
Ladies and Gentlemen:
Underss.2.10 of the Credit Agreement among you, Borrower, the Co-Borrowers named
therein, Liberty Property Trust, certain other Lenders and us (the "Credit
Agreement"), this response is given with respect to the Competitive Bid Loan
Quotes for Loans to be made on the following Requested Borrowing Date:
_______________
Liberty Property Limited Partnership hereby accepts the following Competitive
Bid Quote(s):
- ----------------------------------------------------------------------------------------------------------------------
Lender Competitive Bid Margin Interest Period Principal Amount Accepted
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ----------------------------------------------------------------------------------------------------------------------
Liberty Property Limited Partnership hereby rejects the following Competitive
Bid Quote(s):
- ----------------------------------------------------------------------------------------------------------------------
Lender Competitive Bid Margin Interest Period Principal Amount Accepted
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
- ----------------------------------------------------------------------------------------------------------------------
The accepted and rejected Competitive Bid Quotes described above
constitute all Competitive Bid Quotes submitted by the Lenders in accordance
with ss.2.10 of the Credit Agreement.
Very truly yours,
Liberty Property Limited Partnership
By: Liberty Property Trust,
Its general partner
By:_______________________________
_______________________________
Its:___________________________
Exhibit L
---------
Joinder Agreement
-----------------
Reference is made to the Credit Agreement dated as of January 16, 2003
(as amended and in effect from time to time, the "Agreement"), among Liberty
Property Limited Partnership, a Pennsylvania limited partnership (the
"Borrower"), the Co-Borrowers named therein, Liberty Property Trust, a Maryland
trust (the "Company"), Fleet National Bank, the other Lenders and Fleet National
Bank as agent (the "Agent") for itself and the other Lenders. Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Agreement.
Reference is further made to the following Notes that have been
executed and delivered pursuant to ss.2.3 of the Agreement (collectively the
"Notes"):
- -------------------------------------------------------------------------------
Note No. Principal Amount Payee
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- --------------------- ---------------------------- ----------------------------
- -------------------------------------------------------------------------------
The undersigned, ___________________, a ________________ ("New
Co-Borrower") certifies that it is a Related Company that is at least 85% owned
by the Borrower. In order that Real Estate Assets owned by the New Co-Borrower
may be eligible to satisfy the requirements contained in the definitions of
Unencumbered Property and Unencumbered Development Property in ss.1.1 of the
Agreement, and for other good and valuable consideration, the New Co-Borrower
hereby agrees to be bound as a Co-Borrower by all of the terms, covenants and
conditions set forth in the Agreement and the Notes to the same extent that it
would have been bound if it had been a signatory to the Agreement and the Notes
on the Effective Date of the Agreement. The New Co-Borrower hereby makes each of
the representations and warranties and agrees to each of the covenants
applicable to the Co-Borrowers contained in the Agreement.
The New Co-Borrower hereby assumes and assumes to be jointly and
severally liable under each of the Notes. The New Co-Borrower hereby waives
presentment, demand, protest and notice of any kind in connection with the
delivery, acceptance, performance and enforcement of the Notes, and also hereby
assent to extensions of time of payment or forbearance or other indulgences
without notice.
This Joinder Agreement and the obligations of the New Co-Borrower
hereunder shall be governed by, interpreted and construed in accordance with all
of the same provisions applicable under the Agreement including, without
limitation, all definitions set forth in ss.1.1, the rules of interpretation set
forth in ss.1.2, the provisions relating to governing law set forth in ss.20,
the provisions relating to counterparts in ss.22 and the provision relating to
severability in ss.26. The New Co-Borrower acknowledges that it has waived its
right to a jury trial with respect to any action or claim arising out of this
Joinder Agreement, the Agreement and the Notes pursuant to ss.24 of the
Multi-Currency Credit Agreement.
IN WITNESS WHEREOF, the New Co-Borrower has caused this Joinder Agreement to be
executed and delivered as an instrument under seal by its duly authorized
officer as of the _____ day of _________, 20__.
[Name of New Co-Borrower]
By:_________________________________
Title:______________________________