1
EXHIBIT 4.9
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 16, 1996
AMONG
FIRST INDUSTRIAL, L.P., AS BORROWER
FIRST INDUSTRIAL REALTY TRUST, INC., AS GENERAL PARTNER
AND
THE FIRST NATIONAL BANK OF CHICAGO
AND
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
AS LENDERS
AND
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
AS DOCUMENTATION AGENT
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
2
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Financial Standards . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II THE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.1 The Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.2 Principal Payments and Extension Option . . . . . . . . . . . . . . . 19
2.3 Requests for Advances; Responsibility for Advances . . . . . . . . . 20
2.4 Evidence of Credit Extensions . . . . . . . . . . . . . . . . . . . . 20
2.5 Ratable and Non-Pro Rata Loans . . . . . . . . . . . . . . . . . . . 20
2.6 Applicable Margins . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.7 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.8 Other Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.9 Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . . . 23
2.10 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.11 Selection of Rate Options and LIBOR Interest Periods . . . . . . . . 23
2.12 Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.13 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.14 Lending Installations . . . . . . . . . . . . . . . . . . . . . . . . 26
2.15 Non-Receipt of Funds by Administrative Agent . . . . . . . . . . . . 27
2.16 Swingline Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.17 Competitive Bid Loans. . . . . . . . . . . . . . . . . . . . . . . . 28
2.18 Voluntary Reduction of Aggregate Commitment Amount . . . . . . . . . 32
2.19 Application of Moneys Received . . . . . . . . . . . . . . . . . . . 32
ARTICLE III THE LETTER OF CREDIT SUBFACILITY . . . . . . . . . . . . . . . . . . . . 33
3.1 Obligation to Issue. . . . . . . . . . . . . . . . . . . . . . . . . 33
3.2 Types and Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.3 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.4 Procedure for Issuance of Facility Letters of Credit . . . . . . . . 35
3.5 Reimbursement Obligations; Duties of Issuing Bank . . . . . . . . . . 36
3.6 Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.7 Payment of Reimbursement Obligations . . . . . . . . . . . . . . . . 38
3.8 Compensation for Facility Letters of Credit . . . . . . . . . . . . . 39
3.9 Letter of Credit Collateral Account . . . . . . . . . . . . . . . . . 39
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ARTICLE IV CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2 Changes in Capital Adequacy Regulations . . . . . . . . . . . . . . 41
4.3 Availability of LIBOR Advances . . . . . . . . . . . . . . . . . . 41
4.4 Funding Indemnification . . . . . . . . . . . . . . . . . . . . . . 42
4.5 Lender Statements; Survival of Indemnity . . . . . . . . . . . . . 42
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.1 Conditions Precedent to Closing . . . . . . . . . . . . . . . . . . 42
5.2 Conditions Precedent to Subsequent Advances . . . . . . . . . . . . 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . 46
6.1 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.2 Corporate/Partnership Powers . . . . . . . . . . . . . . . . . . . 46
6.3 Power of Officers . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.4 Government and Other Approvals . . . . . . . . . . . . . . . . . . 46
6.5 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.6 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . 47
6.7 Enforceability of Agreement . . . . . . . . . . . . . . . . . . . . 47
6.8 Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.10 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.11 Investment Company Act of 1940 . . . . . . . . . . . . . . . . . . 48
6.12 Public Utility Holding Company Act . . . . . . . . . . . . . . . . 48
6.13 Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.14 No Material Adverse Financial Change . . . . . . . . . . . . . . . 48
6.15 Financial Information . . . . . . . . . . . . . . . . . . . . . . . 48
6.16 Factual Information . . . . . . . . . . . . . . . . . . . . . . . . 49
6.17 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.18 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.19 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . 49
6.20 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.21 No Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.22 No Violation of Usury Laws . . . . . . . . . . . . . . . . . . . . 51
6.23 Not a Foreign Person . . . . . . . . . . . . . . . . . . . . . . . 51
6.24 No Trade Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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6.25 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.26 Unencumbered Assets . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VII ADDITIONAL REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 53
7.1 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.2 Corporate Powers . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.3 Power of Officers . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.4 Government and Other Approvals . . . . . . . . . . . . . . . . . . 54
7.5 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . 54
7.6 Enforceability of Agreement . . . . . . . . . . . . . . . . . . . . 54
7.7 Liens; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.8 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.9 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.10 Investment Company Act of 1940 . . . . . . . . . . . . . . . . . . 55
7.11 Public Utility Holding Company Act . . . . . . . . . . . . . . . . 55
7.12 No Material Adverse Financial Change . . . . . . . . . . . . . . . 55
7.13 Financial Information . . . . . . . . . . . . . . . . . . . . . . . 55
7.14 Factual Information . . . . . . . . . . . . . . . . . . . . . . . . 55
7.15 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.16 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.17 No Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.18 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.19 Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VIII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 56
8.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.2 Financial Statements, Reports, Etc. . . . . . . . . . . . . . . . . 57
8.3 Existence and Conduct of Operations . . . . . . . . . . . . . . . . 60
8.4 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . 60
8.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.6 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . 61
8.7 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . 61
8.8 Adequate Books . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.9 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.10 Maintenance of Status . . . . . . . . . . . . . . . . . . . . . . . 61
8.11 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.12 Pre-Acquisition Environmental Investigations. . . . . . . . . . . . 61
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ARTICLE IX NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.1 Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.2 Change of Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . 62
9.3 Change of Borrower Ownership or Financing Partnership Ownership . . . . . . . 62
9.4 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.5 Transfers of Unencumbered Assets. . . . . . . . . . . . . . . . . . . . . . . 62
9.6 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.7 Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.8 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.9 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.10 Indebtedness and Cash Flow Covenants . . . . . . . . . . . . . . . . . . . . 64
9.11 Mergers and Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.12 Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.13 Maximum Revenue from Single Tenant . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE X DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.1 Nonpayment of Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.2 Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.3 Nonpayment of Interest and Other Obligations . . . . . . . . . . . . . . . . 66
10.4 Cross Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.5 Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.6 Representation or Warranty . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.7 Covenants, Agreements and Other Conditions . . . . . . . . . . . . . . . . . 66
10.8 No Longer General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.9 Material Adverse Financial Change . . . . . . . . . . . . . . . . . . . . . . 67
10.10 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.11 Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.12 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.13 REMIC Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.14 Failure to Satisfy Judgments . . . . . . . . . . . . . . . . . . . . . . . . 68
10.15 Environmental Remediation . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE XI ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES . . . . . . . . . . . . . . . . . 69
11.1 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
11.2 Preservation of Rights; Amendments . . . . . . . . . . . . . . . . . . . . . 69
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ARTICLE XII THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . . . . . 70
12.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
12.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
12.3 General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . 70
12.4 No Responsibility for Loans, Recitals, etc . . . . . . . . . . . . 70
12.5 Action on Instructions of Lenders . . . . . . . . . . . . . . . . . 70
12.6 Employment of Administrative Agents and Counsel . . . . . . . . . . 71
12.7 Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . 71
12.8 Administrative Agent's Reimbursement and Indemnification . . . . . 71
12.9 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . 71
12.10 Commitment as a Lender . . . . . . . . . . . . . . . . . . . . . . 71
12.11 Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . 72
12.12 Successor Administrative Agent . . . . . . . . . . . . . . . . . . 72
12.13 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . 73
12.14 Requests for Approval . . . . . . . . . . . . . . . . . . . . . . . 73
12.15 Copies of Documents . . . . . . . . . . . . . . . . . . . . . . . . 73
12.16 Defaulting Lenders . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . . . . . 74
13.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . 74
13.2 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . 74
13.2.1 Permitted Participants; Effect . . . . . . . . . . . . . . 74
13.2.2 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . 75
13.3 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
13.3.1 Permitted Assignments . . . . . . . . . . . . . . . . . . . 75
13.3.2 Effect; Effective Date of Assignment . . . . . . . . . . . 76
13.4 Dissemination of Information . . . . . . . . . . . . . . . . . . . 76
13.5 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE XIV GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 77
14.1 Survival of Representations . . . . . . . . . . . . . . . . . . . . 77
14.2 Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . 77
14.3 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
14.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
14.5 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . 77
14.6 Expenses; Indemnification . . . . . . . . . . . . . . . . . . . . . 77
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14.7 Severability of Provisions . . . . . . . . . . . . . . . . . . . . 78
14.8 Nonliability of the Lenders . . . . . . . . . . . . . . . . . . . . 78
14.9 Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
14.10 Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 78
14.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 79
14.12 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 79
14.13 Entire Agreement; Modification of Agreement . . . . . . . . . . . . 79
14.14 Dealings with the Borrower . . . . . . . . . . . . . . . . . . . . 80
14.15 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
14.16 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE XV NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
15.1 Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
15.2 Change of Address . . . . . . . . . . . . . . . . . . . . . . . . . 82
EXHIBITS
A - Percentages
B-1 - Form of Note
B-2 - Form of Competitive Bid Note
C-1 - Form of Competitive Bid Quote Request
C-2 - Invitation for Competitive Bid Quotes
C-3 - Competitive Bid Quote
D - Form of Guaranty
E - Opinion of Borrower's Counsel
F - Opinion of General Partner's Counsel
G - Wiring Instructions
H - Form of Compliance Certificate
I - Scope of Work for Environmental Investigations
J - Form of Assignment Agreement
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SCHEDULES
6.9 Litigation (Borrower)
6.19 Environmental Compliance
6.24 Trade Names
6.25 Subsidiaries (Borrower)
6.26 Unencumbered Assets
7.8 Litigation (General Partner)
7.18 Subsidiaries (General Partner)
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UNSECURED REVOLVING CREDIT AGREEMENT
THIS UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of
December 16, 1996, by and among the following:
FIRST INDUSTRIAL, L.P., a Delaware limited partnership having its
principal place of business at 150 North Wacker Drive, Suite 150, Chicago,
Illinois 60606 ("Borrower"), the sole general partner of which is First
Industrial Realty Trust, Inc., a Maryland corporation;
FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is
qualified as a real estate investment trust whose principal place of business
is 150 North Wacker Drive, Suite 150, Chicago, Illinois 60606 ("General
Partner");
THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a national
bank organized under the laws of the United States of America having an office
at One First National Plaza, Chicago, Illinois 60670;
UNION BANK OF SWITZERLAND, NEW YORK BRANCH ("UBS"), the New York
Branch of a Swiss banking corporation, having an office at 299 Park Avenue, New
York, New York 10171;
UBS, as Documentation Agent ("Documentation Agent");
First Chicago, as Administrative Agent ("Administrative Agent") for
the Lenders (as defined below).
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, owning and operating bulk warehouse and light industrial
properties.
B. The Borrower has requested that the Lenders make loans available
to the Borrower in the maximum aggregate principal amount of $200,000,000
outstanding from time to time pursuant to the terms of this Agreement (the
"Facility"), and that the Administrative Agent act as administrative agent for
the Lenders and that the Documentation Agent act as documentation agent for the
Lenders. The Administrative Agent, the Documentation Agent and the Lenders
have agreed to do so.
C. General Partner is fully liable for the obligations of Borrower
hereunder by virtue of its status as the sole general partner of Borrower.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
10
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used in this Agreement, the following
terms have the meanings set forth below:
"Absolute Interest Period" means, with respect to a Competitive Bid
Loan made at an Absolute Rate, a period of up to 180 days as requested by
Borrower in a Competitive Bid Quote Request and confirmed by a Lender in a
Competitive Bid Quote but in no event extending beyond the Maturity Date. If
an Absolute Interest Period would end on a day which is not a Business Day,
such Absolute Interest Period shall end on the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the
nearest 1/100 of 1%) for an Absolute Interest Period with respect to a
Competitive Bid Loan offered by a Lender and accepted by the Borrower at such
rate under Section 2.17.
"Adjusted Corporate Base Rate" means a floating interest rate equal
to the Corporate Base Rate plus CBR Applicable Margin changing when and as the
Corporate Base Rate and CBR Applicable Margin changes.
"Adjusted Corporate Base Rate Advance" means an Advance that bears
interest at the Adjusted Corporate Base Rate.
"Adjusted EBITDA" means the sum of EBITDA and reported corporate
overhead for Borrower and its Subsidiaries; provided that "Adjusted EBITDA"
shall not include overhead related to specific properties.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for
the relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the Base
LIBOR Rate applicable to such LIBOR Interest Period, divided by (b) one minus
the Reserve Requirement (expressed as a decimal) applicable to such LIBOR
Interest Period, plus, in the case of ratable LIBOR Advances, the LIBOR
Applicable Margin in effect from time to time during such LIBOR Interest
Period, or in the case of LIBOR Advances made as Competitive Bid Loans, the
Competitive LIBOR Margin established in the Competitive Bid Quote applicable to
such Competitive Bid Loan.
"Administrative Agent" means First Chicago, acting as agent for the
Lenders in connection with the transactions contemplated by this Agreement, and
its successors in such capacity.
11
"Advance" means a Loan to the Borrower hereunder by one or more of
the Lenders pursuant to Section 2.1(a) hereof (including Swingline Loans and
Competitive Bid Loans), including the initial Advance and all subsequent
Advances, whether such Advances are from time to time, Adjusted Corporate Base
Rate Advances, LIBOR Advances, Swingline Loans or Competitive Bid Loans.
"Affiliate" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any other Person.
A Person shall be deemed to control another Person if the controlling Person
owns ten percent (10%) or more of any class of voting securities of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the sum of all of the
Lenders' then-current Commitments, which initially shall be $200,000,000,
subject to Borrower's right to reduce the Aggregate Commitment pursuant to
Section 2.18 and which shall otherwise only be increased with the consent of
all Lenders.
"Agreement" means this Unsecured Revolving Credit Agreement and all
amendments, modifications and supplements hereto.
"Agreement Execution Date" shall mean December 16, 1996, the date
on which all of the parties hereto have executed this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans and Competitive Bid Loans),
and the then Facility Letter of Credit Obligations.
"Applicable Margin" means the applicable margins set forth in the
table in Section 2.6 used in calculating the interest rate applicable to the
various types of Advances, which shall vary from time to time in accordance
with the long term, senior unsecured debt ratings of Borrower and General
Partner in the manner set forth in Section 2.6.
"Arranger" means First Chicago Capital Markets, Inc. and UBS,
collectively.
"Base LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in immediately available funds in Dollars are
offered by the Administrative Agent to first-class banks in the London
interbank eurodollar market at approximately 11:00 a.m. London time two
Business Days prior to the first day of such LIBOR Interest Period, in the
approximate amount of the relevant LIBOR Advance and having a maturity
approximately equal to such LIBOR Interest Period.
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"Borrower" means First Industrial, L.P., along with its permitted
successors and assigns.
"Borrowing Date" means a Business Day on which an Advance is made
to the Borrower.
"Borrowing Notice" is defined in Section 2.11(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or
holiday, on which banks are open for business in Chicago, Illinois and, where
such term is used in reference to the selection or determination of the
Adjusted LIBOR Rate, in London, England.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person which is not a
corporation and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents" shall mean (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by Standard and Poor's Corporation or P-1 or better by Moody's
Investors Service, Inc., or (iii) certificates of deposit issued by and time
deposits with commercial banks (whether domestic or foreign) having capital and
surplus in excess of $100,000,000.
"CBR Applicable Margin" means, as of any date with respect to any
Adjusted Corporate Base Rate Advance, the Applicable Margin in effect for such
Adjusted Corporate Base Rate Advance as determined in accordance with Section
2.6 hereof.
"Code" means the Internal Revenue Code of 1986 as amended from time
to time, or any replacement or successor statute, and the regulations
promulgated thereunder from time to time.
"Collateral Letter of Credit" means any irrevocable unconditional
Letter of Credit issued in the name of the Administrative Agent for the benefit
of the Lenders in form and substance satisfactory to the Administrative Agent
and drawn on a bank having a rating of at least AA by S&P and otherwise
satisfactory to the Administrative Agent.
"Commitment" means the obligation of each Lender, subject to the
terms and conditions of this Agreement and in reliance upon the representations
and warranties herein, to make Advances not exceeding in the aggregate the
amount set forth opposite its signature below, or the amount stated in any
subsequent amendment hereto.
"Competitive Bid Borrowing Notice" is defined in Section 2.17(f).
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"Competitive Bid Lender" means a Lender which has a Competitive Bid
Loan outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.17
hereof.
"Competitive Bid Note" means the promissory note payable to the
order of each Lender in the form attached hereto as Exhibit B-2 to be used to
evidence any Competitive Bid Loans which such Lender elects to make
(collectively, the "Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to
the Administrative Agent with respect to a Competitive Bid Quote Request in the
form attached as Exhibit C-3.
"Competitive Bid Quote Request" means a written request from
Borrower to Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive
Bid Loan for a LIBOR Interest Period, the percentage established in the
applicable Competitive Bid Quote which is to be used to determine the interest
rate applicable to such Competitive Bid Loan.
"Consolidated Operating Partnership" means the Borrower, the
General Partner and any other subsidiary partnerships or entities of either of
them which are required under GAAP to be consolidated with the Borrower and the
General Partner for financial reporting purposes.
"Consolidated Secured Debt" means as of any date of determination,
the sum of (a) the aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries outstanding at such date which is secured by a
Lien on any asset or Capital Stock of Borrower or any Subsidiary, including
without limitation loans secured by mortgages, stock, or partnership interests,
but excluding Defeased REMIC Debt, and (b) the amount by which the aggregate
principal amount of all Indebtedness of the Subsidiaries outstanding at such
date exceeds $5,000,000, without duplication of any Indebtedness included under
clause (a).
"Consolidated Senior Unsecured Debt" means as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries outstanding at such date other than (a)
Indebtedness which is contractually subordinated to the Indebtedness of the
Borrower and its Subsidiaries under the Loan Documents on terms acceptable to
the Administrative Agent and (b) that portion of Consolidated Secured Debt
described in clause (a) of that definition.
"Consolidated Total Indebtedness" means as of any date of
determination, all Indebtedness of the Borrower and its Subsidiaries
outstanding at such date, determined on a consolidated basis in accordance with
GAAP, after eliminating intercompany items; provided that for purposes of
defining "Consolidated Total Indebtedness" the term "Indebtedness" shall
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not include the short term debt (e.g. accounts payable, short term expenses) of
Borrower or General Partner or Defeased REMIC Debt.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with all or any of the entities in the
Consolidated Operating Partnership, are treated as a single employer under
Sections 414(b) or 414(c) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as such corporate base rate changes.
"Debt Service" means for any period, (a) Interest Expense for such
period plus (b) the aggregate amount of regularly scheduled principal payments
of Indebtedness (excluding optional prepayments and balloon principal payments
due on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its consolidated Subsidiaries plus (c) a
percentage of all such regularly scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness (excluding
optional prepayments and balloon principal payments due on maturity in respect
of any Indebtedness) taken into account in calculating Interest Expense, equal
to the greater of (x) the percentage of the principal amount of such
Indebtedness for which the Borrower or any consolidated Subsidiary is liable
and (y) the percentage ownership interest in such Investment Affiliate held by
the Borrower and any consolidated Subsidiaries, in the aggregate, without
duplication plus (d) Senior Preferred Stock Expense for such period.
"Default" means an event which, with notice or lapse of time or
both, would become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to
the interest rate applicable to such Advance plus three percent (3%) per annum.
"Defaulting Lender" means any Lender which fails or refuses to
perform its obligations under this Agreement within the time period specified
for performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Defeased REMIC Debt" means the REMIC Loan, if Borrower elects to
fully defease the REMIC Loan and obtain the release of the Projects presently
securing the REMIC Loan by delivering substitute collateral in the form of
obligations supported by the credit of the United States government in such
amounts as are required and permitted under the terms of the REMIC Loan.
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"Dollars" and "$" mean United States Dollars.
"Duff & Phelps" means Duff & Phelps Credit Rating Company.
"EBITDA" means income before extraordinary items and after
adjustment for any gains or losses from sales of assets (reduced to eliminate
any income from Investment Affiliates and any income from the assets used for
Defeased REMIC Debt), as reported by the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, plus Interest Expense,
depreciation, amortization and income tax (if any) expense plus a percentage of
such income (adjusted as described above) of any Investment Affiliate equal to
the allocable economic interest in such Investment Affiliate held by the
Borrower and any Subsidiaries, in the aggregate (provided that no item of
income or expense shall be included more than once in such calculation even if
it falls within more than one of the foregoing categories).
"Effective Date" means each Borrowing Date and, if no Borrowing
Date has occurred in the preceding calendar month, the first Business Day of
each calendar month.
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority having jurisdiction over
the Borrower, its Subsidiaries or Investment Affiliates, or their respective
assets, and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.
"Equity Value" is defined in Section 10.10 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and regulations promulgated thereunder from time to time.
"Event of Default" means any event set forth in Article X hereof.
"Extension Notice" is defined in Section 2.2 hereof.
"Facility" means the unsecured revolving credit facility described
in Section 2.1.
"Facility Fee" and "Facility Fee Rate" are defined in Section
2.8(b).
"Facility Letter of Credit" means a Financial Letter of Credit or
Performance Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in Section 3.8.
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"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10 a.m.
(Chicago time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FIMC" means First Industrial Mortgage Corporation, a Delaware
corporation, and the sole general partner of the Mortgage Partnership. FIMC is
a wholly-owned subsidiary of the General Partner.
"Financial Letter of Credit" means any standby Letter of Credit
which represents an irrevocable obligation to the beneficiary on the part of
the Issuing Bank (i) to repay money borrowed by or advanced to or for the
account of the account party or (ii) to make any payment on account of any
indebtedness undertaken by the account party, in the event the account party
fails to fulfill its obligation to the beneficiary.
"Financing Partnership" means First Industrial Financing
Partnership, L.P., a Delaware limited partnership. Borrower and General
Partner, either directly or indirectly, collectively own 100% of the
partnership interests of the Financing Partnership.
"First Chicago" means The First National Bank of Chicago.
"FISC" means First Industrial Securities Corporation, a Delaware
corporation, and the sole general partner of the Guaranteeing Partnership.
FISC is a wholly-owned subsidiary of the General Partner.
"Fitch" means Fitch Investors Service, L.P.
"Funded Percentage" means, with respect to any Lender at any time,
a percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the
Lenders at such time.
"Funding Lender" is defined in Section 2.3.
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"Funds From Operations" shall mean GAAP net income of the
Consolidated Operating Partnership, as adjusted by (i) excluding gains and
losses from property sales, debt restructurings and property write-downs and
adjusted for the non-cash effect of straight-lining of rents, (ii)
straight-lining various ordinary operating expenses which are payable less
frequently than monthly (e.g., real estate taxes) and (iii) adding back
depreciation, amortization and all non-cash items. Annualized Funds From
Operations for any Person will be calculated by annualizing actual Funds From
Operations for the most recently ended fiscal quarter. In calculating Funds
From Operations, no deduction shall be made from net income for closing costs
and other one-time charges associated with the formation and capitalization of
such Person.
"GAAP" means generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the audited
financial statements of the Borrower required hereunder.
"General Partner" means First Industrial Realty Trust, Inc., a
Maryland corporation that is listed on the New York Stock Exchange and is
qualified as a real estate investment trust. General Partner is the sole
general partner of Borrower.
"Gross Revenues" means total revenues, calculated in accordance
with GAAP.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of the guaranteeing
person (or any other Person [including, without limitation, any bank under any
letter of credit] if the guaranteeing person has issued a reimbursement,
counter indemnity or similar obligation in favor of such other Person)
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the maximum stated amount of the primary
obligation relating to such Guarantee Obligation (or, if less, the maximum
stated liability set forth in the instrument embodying such Guarantee
Obligation), provided, that in the absence of any such stated amount or stated
liability, the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum
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reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guaranteeing Partnership" means First Industrial Securities L.P.,
a Delaware limited partnership. FISC is the sole general partner of the
Guaranteeing Partnership and Borrower is the sole limited partner.
"Guaranty" means the Guaranty executed by the General Partner in
the form attached hereto as Exhibit D.
"Implied Capitalization Value" means for any Person for any
quarter, the sum of (i) the quotient of (x) the Adjusted EBITDA for such Person
during such quarter (which Adjusted EBITDA shall be annualized as described in
the definition of "Funds From Operations", but shall exclude any Adjusted
EBITDA attributable to Preleased Assets Under Development), and (y) the then
most recent "Average Residual Cap Rate for National Industrial Markets", as
published in the Korpacz Real Estate Investor Survey, plus (ii) an amount equal
to fifty percent (50%) of the value of all Preleased Assets Under Development,
provided that in no event shall the aggregate amount added to Implied
Capitalization Value pursuant to this clause (ii) exceed $50,000,000. For
purposes of computing the Implied Capitalization Value, (A) Adjusted EBITDA may
be increased from quarter to quarter by the amount of net cash flow from new
leases of space at the Properties approved by Administrative Agent (where such
net cash flow has not then been included in EBITDA) which have a minimum term
of one year and (B) Properties which either (i) were acquired during the
quarter and/or (ii) were previously assets under development under GAAP but
which have been completed during the quarter and have at least some tenants in
possession of the respective leased spaces and conducting business operations
therein each will be included in the calculation of Implied Capitalization
Value using Pro Forma EBITDA for the quarter, so long as a "new
acquisition/opening summary" form is submitted to, and approved by,
Administrative Agent for each new acquisition or newly-opened Property during
such quarter. In no event shall the "Average Residual Cap Rate for Industrial
Markets" used to calculate the Implied Capitalization Value be less than 9% or
greater than 9.5%.
"Indebtedness" of any Person at any date means without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness
for the purposes of GAAP, (c) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (d) all obligations
of such Person under financing leases and capital leases, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated indebtedness of the Borrower, Guarantee Obligations
of the Borrower in respect of primary obligations of any Subsidiary), (g) all
reimbursement obligations of such Person for letters of credit and other
contingent
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liabilities, (h) all liabilities secured by any Lien (other than Liens for
taxes not yet due and payable) on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof,
(i) any repurchase obligation or liability of such Person or any of its
Subsidiaries with respect to accounts or notes receivable sold by such Person
or any of its Subsidiaries, (j) Senior Preferred Stock, and (k) such Person's
pro rata share of debt in Investment Affiliates and any loans where such Person
is liable as a general partner. The liquidation preference of the Senior
Preferred Stock will be considered as Indebtedness and Consolidated Total
Indebtedness, provided, however, that the obligations of the General Partner
created by the issuance of Senior Preferred Stock and the obligations of the
Guaranteeing Partnership created by the execution and delivery of the PS
Guaranty shall be deemed to constitute a single, combined liability on a
consolidated basis.
"Insolvency" means insolvency as defined in the United States
Bankruptcy Code, as amended. "Insolvent" when used with respect to a Person,
shall refer to a Person who satisfies the definition of Insolvency.
"Interest Expense" means all interest expense of the Borrower and
its Subsidiaries determined in accordance with GAAP plus (i) capitalized
interest not covered by an interest reserve from a loan facility, plus (ii) the
allocable portion (based on liability) of any accrued or paid interest incurred
on any obligation for which the Borrower or any Subsidiary is wholly or
partially liable under repayment, interest carry, or performance guarantees, or
other relevant liabilities, plus (iii) the allocable percentage of any accrued
or paid interest incurred on any Indebtedness of any Investment Affiliate,
whether recourse or non-recourse, equal to the applicable economic interest in
such Investment Affiliate held by the Borrower and any Subsidiaries, in the
aggregate, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories;
provided, however, that "Interest Expense" shall not include (i) those costs
and fees which have been capitalized and are payable by Borrower and/or the
Financing Partnership by reason of the purchase of a $300,000,000 interest rate
cap/swap from Union Bank of Switzerland in connection with the REMIC Loan or
(ii) dividends paid on Senior Preferred Stock or payments made pursuant to the
PS Guaranty or (iii) interest on the REMIC Loan after it becomes Defeased REMIC
Debt.
"Interest Period" means either an Absolute Interest Period or a
LIBOR Interest Period.
"Investment Affiliate" means any Person in which the Borrower,
directly or indirectly, has an ownership interest, whose financial results are
not consolidated under GAAP with the financial results of the Borrower on the
consolidated financial statements of the Borrower.
"Invitation for Competitive Bid Quotes" means a written notice to
the Lenders from the Administrative Agent with respect to a Competitive Bid
Quote Request in the form attached as Exhibit C-2 hereto.
"Issuance Date" is defined in Section 3.4(a)(3).
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"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of
Credit, the Lender which issues such Facility Letter of Credit. First Chicago
shall be the sole Issuing Bank.
"Lenders" means, collectively, First Chicago, UBS and the other
Persons executing this Agreement in such capacity, or any Person which
subsequently executes and delivers any amendment hereto in such capacity and
each of their respective permitted successors and assigns. Where reference is
made to "the Lenders" in any Loan Document it shall be read to mean "all of the
Lenders".
"Lending Installation" means any U.S. office of any Lender
authorized to make loans similar to the Advances described herein.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"LIBOR Advance" means an Advance that bears interest at the
Adjusted LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable
Margin or a Competitive Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with Section 2.6 hereof.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a
period of one, two, three or six months (to the extent that periods in excess
of three months are generally available from the Lenders), as selected in
advance by the Borrower.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof, any filing
or agreement to file a financing statement as debtor under the Uniform
Commercial Code on any property leased to any Person under a lease which is not
in the nature of a conditional sale or title retention agreement, or any
subordination agreement in favor of another Person).
"Loan" means, with respect to a Lender, such Lender's portion of
any Advance.
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"Loan Documents" means this Agreement, the Notes, the Guaranty and
any and all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to
time.
"Majority Lenders" means Lenders in the aggregate having in excess
of 50% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding in excess of 50% of the aggregate
unpaid principal amount of the outstanding Advances.
"Margin Stock" has the meaning ascribed to it in Regulation U of
the Board of Governors of the Federal Reserve System.
"Market Value Net Worth" means at any time, Implied Capitalization
Value at such time minus the Indebtedness of Borrower and its Subsidiaries at
such time.
"Material Adverse Effect" means, with respect to any matter, that
such matter in the Supermajority Lenders' good faith judgment may (x)
materially and adversely affect the business, properties, condition or results
of operations of the Consolidated Operating Partnership taken as a whole, or
(y) constitute a non-frivolous challenge to the validity or enforceability of
any material provision of any Loan Document against any obligor party thereto.
"Material Adverse Financial Change" shall be deemed to have
occurred if the Supermajority Lenders, in their good faith judgment, determine
that a material adverse financial change has occurred which could prevent
timely repayment of any Advance hereunder or materially impair Borrower's
ability to perform its obligations under any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means April 30, 2000, subject to extension pursuant
to the terms and conditions of Section 2.2 hereof or such earlier date on which
the principal balance of the Facility and all other sums due in connection with
the Facility shall be due as a result of the acceleration of the Facility.
"Monetary Default" means any Default involving Borrower's failure
to pay any of the Obligations when due.
"Moody's" means Moody's Investors Service, Inc. and its successors.
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"Mortgage Partnership" means First Industrial Mortgage L.P., a
Delaware limited partnership. FIMC is the sole general partner of the Mortgage
Partnership and Borrower is the sole limited partner.
"Note" means the promissory note payable to the order of each
Lender in the amount of such Lender's maximum Commitment in the form attached
hereto as Exhibit B-1 (collectively, the "Notes").
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or any or all of the Lenders arising under
this Agreement or any of the other Loan Documents.
"Payment Date" means the last Business Day of each calendar
quarter.
"Partial Advance" is defined in Section 2.3 hereof.
"Participants" is defined in Section 13.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable
percentage of the then-current Aggregate Commitment represented by such
Lender's then-current Commitment.
"Performance Letter of Credit" means any standby Letter of Credit
which represents an irrevocable obligation to the beneficiary on the part of
the Issuing Bank to make payment on account of any default by the account party
in the performance of a nonfinancial or commercial obligation.
"Permitted Liens" are defined in Section 9.6 hereof.
"Person" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA, whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"Preleased Assets Under Development" means as of any date of
determination, any Project which (i) is under construction and then treated as
an asset under development under GAAP, and (ii) has, as of such date, at least
fifty percent (50%) of its projected total rentable area leased at market rates
to third party tenants similar to those at Borrower's other properties, both
such land and improvements under construction to be valued for purposes of
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this Agreement at then-current book value, as determined in accordance with
GAAP; provided, however, in no event shall Preleased Assets Under Development
include any Project for more than 270 days from the date such Project is
initially so designated under GAAP.
"Project" means any real estate asset owned by the Borrower or any
wholly-owned Subsidiary and operated as a bulk warehouse or light industrial
property.
"Property" means each parcel of real property owned or operated by
the Borrower, any Subsidiary or Investment Affiliate.
"Property Operating Income" means, with respect to any Property,
for any period, earnings from rental operations (computed in accordance with
GAAP but without deduction for reserves) attributable to such Property plus
depreciation, amortization and interest expense with respect to such Property
for such period, and, if such period is less than a year, adjusted by straight
lining various ordinary operating expenses which are payable less frequently
than once during every such period (e.g. real estate taxes and insurance). At
the request of either Borrower or the Administrative Agent, the earnings from
rental operations reported for the immediately preceding fiscal quarter shall
be adjusted to include pro forma earnings (as substantiated to the satisfaction
of the Administrative Agent) for an entire quarter for any Property acquired or
placed in service during the then-current fiscal quarter and to exclude
earnings with respect to such immediately preceding fiscal quarter from any
Property not owned as of the date of determination.
"PS Guaranty" means the existing guaranty of Senior Preferred Stock
by the Guaranteeing Partnership.
"Purchasers" is defined in Section 13.3.1 hereof.
"Qualified Officer" means, with respect to any entity, the chief
financial officer, chief accounting officer or controller of such entity if it
is a corporation or of such entity's general partner if it is a partnership.
"Rate Option" means the Adjusted Corporate Base Rate, the Adjusted
LIBOR Rate or the Absolute Rate (only as applicable to Competitive Bid Loans).
The Rate Option in effect on any date shall always be the Adjusted Corporate
Base Rate unless the Borrower has properly selected the Adjusted LIBOR Rate
pursuant to Section 2.11 hereof or a Competitive Bid Loan pursuant to Section
2.17 hereof.
"Rating Pricing Period" means any period during the term of the
Facility during which the Borrower's or General Partner's long-term, senior
unsecured debt has been rated by at least two of S&P, Moody's, Fitch and Duff &
Phelps and the lower of the highest two ratings (at least one of which is from
S&P or Moody's) is at least BBB- (S&P) or Baa3 (Moody's) or an equivalent
rating from Fitch or Duff & Phelps.
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"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"REMIC Loan" means the $300,000,000 mortgage loan made by Nomura
Asset Capital Corporation ("REMIC Lender") to Financing Partnership pursuant to
the terms of a Loan Agreement dated as of June 30, 1994 ("REMIC Loan
Agreement").
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided that a failure to meet the minimum
funding standard of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such waivers in
accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reserve Requirement" means, with respect to a LIBOR Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurocurrency liabilities.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Second REMIC Loan" means the up to $42,600,000 mortgage loan made
by REMIC Lender to Mortgage Partnership pursuant to the terms of a Loan
Agreement dated as of December 29, 1995 (the "Second REMIC Loan Agreement") of
which only $40,200,000 was actually funded.
"Senior Preferred Stock" means the stated value of any preferred
stock issued by the General Partner which is not typical preferred stock but
instead is both (i) redeemable by the holders thereof on any fixed date or upon
the occurrence of any event and (ii) as to payment of dividends or amounts on
liquidation, either guaranteed by any direct or indirect Subsidiary of the
General Partner or secured by any property of the General Partner or any direct
or indirect Subsidiary of the General Partner.
"Senior Preferred Stock Expense" means for any period for any
Person, the aggregate dividend payments due to the holders of Senior Preferred
Stock of such Person, whether payable in cash or in kind, and whether or not
actually paid during such period.
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"Supermajority Lenders" means, as of any date, those Lenders
holding, in the aggregate, more than two-thirds (2/3) of the then-current
Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders holding, in the aggregate, more than two-thirds (2/3) of the aggregate
unpaid principal amount of the outstanding Advances.
"Subsidiary" means as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person, and provided such corporation,
partnership or other entity is consolidated with such Person for financial
reporting purposes under GAAP.
"Swingline Advances" means, as of any date, collectively, all
Swingline Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender
to make Swingline Loans not exceeding $15,000,000.
"Swingline Lender" shall mean First Chicago, in its capacity as a
Lender.
"Swingline Loan" means a Loan made by the Swingline Lender under
the special availability provisions described in Sections 2.16 hereof.
"Total Liabilities" means all Indebtedness plus all other GAAP
liabilities of the Borrower and its Subsidiaries.
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means any Project which, as of any date of
determination, (a) is not subject to any Liens other than Permitted Liens and
Liens in favor of the Lenders securing this Facility, (b) is not subject to any
agreement (including any agreement governing Indebtedness incurred in order to
finance or refinance the acquisition of such asset) which prohibits or limits
the ability of the Borrower, or its Subsidiaries, as the case may be, to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the Borrower or any of its Subsidiaries, (c) is not subject to any
agreement (including any agreement governing Indebtedness incurred in order to
finance or refinance the acquisition of such asset) which entitles any Person
to the benefit of any Lien (but excluding Liens in favor of Lenders securing
this Facility and other Permitted Liens) on any assets or Capital Stock of the
Borrower or any of its Subsidiaries or would entitle any Person to the benefit
of any Lien (but excluding liens in favor of Lenders securing this Facility and
other Permitted Liens) on such assets or Capital Stock upon the occurrence of
any contingency (including, without limitation, pursuant to an "equal and
ratable" clause), (d) is not the subject of any material
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architectural/engineering issue, as evidenced by a certification of Borrower,
and (e) is materially compliant with the representations and warranties in
Article VI below. Notwithstanding the foregoing, if any Project is a
"Superfund" site under federal law or a site identified in writing by the
jurisdiction in which such Project is located as having significant
environmental contamination under applicable state law, Borrower shall so
advise the Lenders in writing and the Majority Lenders shall have the right to
request from Borrower a current detailed environmental assessment (or one which
is not more than two years old for Unencumbered Assets owned as of the
Agreement Execution Date), and, if applicable, a written estimate of any
remediation costs from a recognized environmental contractor and to exclude any
such Project from Unencumbered Assets at their election. No Project of a
Subsidiary shall be deemed to be unencumbered unless both such Project and all
Capital Stock of such Subsidiary is unencumbered and neither such Subsidiary
nor any other intervening Subsidiary between the Borrower and such Subsidiary
has any Indebtedness for borrowed money (other than Indebtedness due to the
Borrower). The Borrower and General Partner acknowledge that Projects owned by
the Guaranteeing Partnership will not constitute Unencumbered Assets until the
PS Guaranty is released. For purposes of determining Unencumbered Assets, the
mortgages on those Projects securing Borrower's existing facility with First
Chicago as agent will be deemed released upon the termination of such existing
facility and First Chicago's receipt of full repayment thereunder.
"Value of Unencumbered Assets" means, as of any date, the amount
determined by dividing the Property Operating Income for a calculation period
which shall be either the immediately preceding full fiscal quarter or, if so
requested by Borrower or the Administrative Agent, the then-current partial
fiscal quarter from each Project which is an Unencumbered Asset as of such date
(as such Property Operating Income is annualized) by the then-current "Average
Residual Cap Rate for National Industrial Markets" described in the definition
of Implied Capitalization Value (including the cap and floor on such rate
described therein). If a Project has been acquired during such a calculation
period then Borrower shall be entitled to include pro forma Property Operating
Income from such property for the entire calculation period in the foregoing
calculation, except for purposes of the financial covenant contained in Section
9.10(d). If a Project is no longer owned as of the date of calculation, then
no value shall be included based on capitalizing Property Operating Income from
such Project, except for purposes of such financial covenant contained in
Section 9.10(d).
The foregoing definitions shall be equally applicable to both the
singular and the plural forms of the defined terms.
1.2 Financial Standards. All financial computations
required of a Person under this Agreement shall be made, and all financial
information required under this Agreement shall be prepared, in accordance with
GAAP, except that if any Person's financial statements are not audited, such
Person's financial statements shall be prepared in accordance with the same
sound accounting principles utilized in connection with the financial
information submitted
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to Lenders with respect to the Borrower or the General Partner or the
Properties in connection with this Agreement and shall be certified by an
authorized representative of such Person.
ARTICLE II
THE FACILITY
2.1 The Facility.
(a) Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Borrower and General
Partner contained herein, Lenders agree to make Advances through the
Administrative Agent to Borrower from time to time prior to the Maturity Date,
provided that the making of any such Advance will not cause the then Allocated
Facility Amount to exceed the then- current Aggregate Commitment. The Advances
may be ratable Adjusted Corporate Base Rate Advances, ratable LIBOR Advances,
non-pro rata Swingline Loans or non-pro rata Competitive Bid Loans. Except as
provided in Sections 2.16, 2.17 and 12.16 hereof, each Lender shall fund its
Percentage of each such Advance and no Lender will be required to fund any
amounts which when aggregated with such Lender's Percentage of (i) all other
Advances (other than Competitive Bid Loans) then outstanding, (ii) all
Swingline Advances and (iii) all Facility Letter of Credit Obligations would
exceed such Lender's then-current Commitment. This facility ("Facility") is a
revolving credit facility and, subject to the provisions of this Agreement,
Borrower may request Advances hereunder, repay such Advances and reborrow
Advances at any time prior to the Maturity Date.
(b) The Facility created by this Agreement, and that
Commitment of each Lender to lend hereunder, shall terminate on the Maturity
Date, unless sooner terminated in accordance with the terms of this Agreement.
(c) In no event shall the Aggregate Commitment exceed Two
Hundred Million Dollars ($200,000,000).
2.2 Principal Payments and Extension Option. Any
outstanding Advances (other than Competitive Bid Loans) and all other unpaid
Obligations shall be paid in full by the Borrower on the Maturity Date. Each
Competitive Bid Loan shall be paid in full on the last day of the applicable
Interest Period as described in Section 2.17 below. The Maturity Date can be
extended for extension periods of one year each upon notice to the
Administrative Agent not later than April 30, 1998 with respect to the first
such extension of the Maturity Date and not later than each April 30 thereafter
for each subsequent extension of the Maturity Date (each an "Extension
Notice"), if (i) no Default has occurred and is continuing at the time of such
notice and at the time of the then applicable Maturity Date, (ii) all of the
Lenders agree to such extension, (iii) all prior extensions have been elected
by the Borrower and accepted by the Lenders, and (iv) the Borrower pays an
extension fee to the
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Administrative Agent for the account of each Lender equal to a pro rata amount
of the upfront fee paid to such Lender (expressed as a percentage of such
Lender's initial Commitment applied to the then-current Commitment of such
Lender). The Administrative Agent shall, at the Borrower's request, confirm
the amount of the upfront fee paid to each Lender with respect to its initial
Commitment. If the Borrower gives an Extension Notice to the Administrative
Agent, the Administrative Agent shall notify the Lenders within 10 days of
receipt of such request. The Lenders shall have 30 days after receipt of an
Extension Notice to notify Administrative Agent as to whether they accept or
reject such extension request and Administrative Agent shall notify Borrower
and the Lenders promptly thereafter of the acceptance or rejection of the
Lenders of Borrower's request to extend the Maturity Date. If the foregoing
conditions are satisfied other than the condition requiring the consent of all
Lenders, then Borrower shall have the right to replace any Lender that does not
agree to the extension provided that Borrower notifies such Lender that it has
elected to replace such Lender and notifies such Lender and the Administrative
Agent of the identity of the proposed replacement Lender no later than the date
six (6) months after the date of the applicable Extension Notice. The Lender
being replaced shall assign its Percentage of the Aggregate Commitment and its
rights and obligations under this Facility to the replacement Lender in
accordance with the requirements of Section 13.3 hereof and the replacement
Lender shall assume such Percentage of the Aggregate Commitment and the related
obligations under this Facility prior to the Maturity Date to be extended, all
pursuant to an assignment and assumption agreement substantially in the form of
Exhibit J hereto. The purchase by the replacement Lender shall be at par (plus
all accrued and unpaid interest and any other sums owed to such Lender being
replaced hereunder) which shall be paid to the Lender being replaced upon the
execution and delivery of the assignment.
2.3 Requests for Advances; Responsibility for Advances.
Ratable Advances shall be made available to Borrower by Administrative Agent in
accordance with Section 2.1(a) and Section 2.11(a) hereof. The obligation of
each Lender to fund its Percentage of each ratable Advance shall be several and
not joint.
2.4 Evidence of Credit Extensions. The Advances of each
Lender outstanding at any time (other than Competitive Bid Loans) shall be
evidenced by the Notes. Each Note executed by the Borrower shall be in a
maximum principal amount equal to each Lender's Percentage of the current
Aggregate Commitment of $200,000,000. Each Lender shall record Advances and
principal payments thereof on the schedule attached to its Note or, at its
option, in its records, and each Lender's record thereof shall be conclusive
absent Borrower furnishing to such Lender conclusive and irrefutable evidence
of an error made by such Lender with respect to that Lender's records.
Notwithstanding the foregoing, the failure to make, or an error in making, a
notation with respect to any Advance shall not limit or otherwise affect the
obligations of Borrower hereunder or under the Notes to pay the amount actually
owed by Borrower to Lenders.
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2.5 Ratable and Non-Pro Rata Loans. Each Advance hereunder
shall consist of Loans made from the several Lenders ratably in proportion to
their Percentages, except for Swingline Loans which shall be made by the
Swingline Lender in accordance with Section 2.16 and Competitive Bid Loans
which may be made on a non-pro rata basis by one or more of the Lenders in
accordance with Section 2.17. The ratable Advances may be Adjusted Corporate
Base Rate Advances, LIBOR Advances or a combination thereof, selected by the
Borrower in accordance with Sections 2.10 and 2.11.
2.6 Applicable Margins. The CBR Applicable Margin and the
LIBOR Applicable Margin to be used in calculating the interest rate applicable
to different types of Advances shall vary from time to time in accordance with
the ratings for Borrower's or General Partner's long-term, senior unsecured
debt as follows:
No Rating Pricing Period in Effect:
Consolidated Total Indebtedness as a Percentage LIBOR CBR
of Implied Capitalization Value Applicable Margin Applicable Margin
less than 25% 0.95%* 0
25% or over, but less than 30% 1.10%* 0.125%
30% or over, but less than 40% 1.10%** 0.25%
40% or over, but not more than 50% 1.35%* 0.375%
* These levels of LIBOR Applicable Margin shall be increased by 0.10%
on the earlier of (i) a date six (6) months after the Agreement
Execution Date if the Rating Pricing Period has not commenced by
such date or (ii) any date on which Borrower or General Partner has
received ratings from both S&P and Moody's lower than BBB-/Baa3 or
has been refused a rating by both S&P and Moody's or has other
reason to know that the Rating Pricing Period will not commence
within such six (6) month period.
** This level of LIBOR Applicable Margin shall be increased by 0.20%
on the earlier of (i) a date six (6) months after the Agreement
Execution Date if the Rating Pricing Period has not commenced by
such date or (ii) any date on which Borrower or General Partner has
received ratings from both S&P and Moody's lower than BBB-/Baa3 or
has been refused a rating by both S&P and Moody's or has other
reason to know that the Rating Pricing Period will not commence
within such six (6) month period.
Rating Pricing Period in Effect:
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LIBOR CBR
Rating Level of Lower of Two Applicable Margin Applicable Margin
Highest Ratings*** Facility Fee
A-/A3 0.80% 0 0.15%
BBB+/Baa1 0.90% 0 0.20%
BBB/Baa2 1.00% 0 0.225%
BBB-/Baa3 1.10% 0.10% 0.25%
*** Rating levels established by reference to S&P and Moody's ratings,
respectively. At least one of S&P or Moody's ratings must always
be included in the two ratings used.
Subject to the clauses shown as * and **, the Applicable Margins
when no Rating Pricing Period is in effect will change only quarterly and upon
delivery of a compliance certificate in the form of Exhibit H attached hereto,
when the Borrower's Implied Capitalization Value is determined. When a Rating
Pricing Period is in effect, all Applicable Margins and the Facility Fee shall
change as and when the applicable rating level changes. In the event an agency
issues different ratings for the Borrower and the General Partner, then the
higher rating for the two entities shall be deemed to be the rating from such
agency.
2.7 Commitment Fee. During those portions of the Facility
term which are not Rating Pricing Periods, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") from the Agreement Execution Date to and including the
Maturity Date, calculated at the rate of 0.20% per annum on the daily
unborrowed portion of such Lender's Commitment (which is equal to the
difference between (a) such Lender's Commitment on such day and (b) the then
outstanding Loans owed to such Lender plus the Lender's Percentage of any
outstanding and undrawn Facility Letters of Credit) payable quarterly in
arrears on the last day of each calendar quarter hereafter beginning December
31, 1996 and on the Maturity Date; provided, however, that the Commitment Fee
shall be calculated at the reduced rate of 0.125% per annum on the daily
unborrowed portion of such Lender's Commitment for any day on which the
principal balance of all outstanding and unpaid Loans under the Facility
(including Swingline Loans and Competitive Bid Loans) plus all outstanding and
undrawn Facility Letters of Credit is greater than 50% of the Aggregate
Commitment. Amounts outstanding under the Swingline Loans shall be considered
part of the available unborrowed portion of the Facility for purposes of
computing the Commitment Fee. Notwithstanding the foregoing, all accrued
Commitment Fees shall be payable on the effective date of any termination of
the obligations of the Lenders to make Loans hereunder.
2.8 Other Fees.
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(a) The Borrower shall pay the fee due to the
Administrative Agent in connection with Competitive Bid Loans as described in
Section 2.17. The Borrower agrees to pay all other fees payable to the
Administrative Agent and the Arranger pursuant to the Borrower's prior letter
agreements with them.
(b) For each day during a Rating Pricing Period the
Borrower shall pay a fee ("Facility Fee") to the Administrative Agent for the
account of the Lenders equal to the applicable Facility Fee Rate in effect for
such day, as shown in Section 2.6 hereof, times the then Aggregate Commitment,
to be shared among the Lenders based on their respective Percentages. The
Facility Fee shall be paid quarterly in arrears.
2.9 Minimum Amount of Each Advance. Each LIBOR Advance
shall be in the minimum amount of $2,000,000 (and in multiples of $100,000 if
in excess thereof), and each Adjusted Corporate Base Rate Advance shall be in
the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), provided, however, that any Adjusted Corporate Base Rate Advance may
be in the amount of the unused Aggregate Commitment.
2.10 Interest.
(a) The outstanding principal balance under the Notes shall
bear interest from time to time at a rate per annum equal to:
(i) the Adjusted Corporate Base Rate; or
(ii) at the election of Borrower with respect to all
or portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest accrued on each Advance shall
be payable in arrears on (i) the first day of each calendar month, commencing
with the first such date to occur after the date hereof, (ii) with respect to
LIBOR Advances, the last day of the applicable LIBOR Interest Period, and (iii)
the Maturity Date. Interest shall not be payable for the day of any payment on
the amount paid if payment is received by Administrative Agent prior to noon
(Chicago time). If any payment of principal or interest under the Notes shall
become due on a day that is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a payment of principal,
such extension of time shall be included in computing interest due in
connection with such payment; provided that for purposes of Section 10.1
hereof, any payments of principal described in this sentence shall be
considered to be "due" on such next succeeding Business Day.
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2.11 Selection of Rate Options and LIBOR Interest Periods.
(a) Borrower, from time to time, may select the Rate Option
and, in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to each
LIBOR Advance. Borrower shall give Administrative Agent irrevocable notice (a
"Borrowing Notice" not later than 11:00 a.m. (Chicago time) (i) at least one
Business Day prior to an Adjusted Corporate Base Rate Advance, (ii) at least
three (3) Business Days prior to a ratable LIBOR Advance, and (iii) not later
than 11:00 a.m. (Chicago time) on the Borrowing Date for each Swingline Loan,
specifying:
(i) the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the LIBOR
Interest Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice
the compliance certificate required in Section 5.2 and otherwise comply with
the conditions set forth in Section 5.2 for Advances. Administrative Agent
shall provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent. The Lenders shall not be obligated to
match fund their LIBOR Advances. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
(b) Administrative Agent shall, as soon as practicable
after receipt of a Borrowing Notice, determine the Adjusted LIBOR Rate
applicable to the requested ratable LIBOR Advance and inform Borrower and
Lenders of the same. Each determination of the Adjusted LIBOR Rate by
Administrative Agent shall be conclusive and binding upon Borrower in the
absence of manifest error.
(c) If Borrower shall prepay a LIBOR Advance other than
on the last day of the LIBOR Interest Period applicable thereto, Borrower shall
be responsible to pay all amounts due to Lenders as required by Section 4.4
hereof.
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(d) As of the end of each LIBOR Interest Period selected
for a ratable LIBOR Advance, the interest rate on the LIBOR Advance will become
the Adjusted Corporate Base Rate, unless Borrower has once again selected a
LIBOR Interest Period in accordance with the timing and procedures set forth in
Section 2.11(g).
(e) The right of Borrower to select the Adjusted LIBOR
Rate for an Advance pursuant to this Agreement is subject to the availability
to Lenders of a similar option. If Administrative Agent determines that (i)
deposits of Dollars in an amount approximately equal to the LIBOR Advance for
which the Borrower wishes to select the Adjusted LIBOR Rate are not generally
available at such time in the London interbank eurodollar market, or (ii) the
rate at which the deposits described in subsection (i) herein are being offered
will not adequately and fairly reflect the costs to Lenders of maintaining an
Adjusted LIBOR Rate on an Advance or of funding the same in such market for
such LIBOR Interest Period, or (iii) reasonable means do not exist for
determining an Adjusted LIBOR Rate, or (iv) the Adjusted LIBOR Rate would be in
excess of the maximum interest rate which Borrower may by law pay, then in any
of such events, Administrative Agent shall so notify Borrower and Lenders and
such Advance shall bear interest at the Adjusted Corporate Base Rate.
(f) In no event may Borrower elect a LIBOR Interest
Period which would extend beyond the Maturity Date. Unless Lenders agree
thereto, in no event may Borrower have more than ten (10) different LIBOR
Interest Periods for LIBOR Advances outstanding at any one time.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time, subject
to the other provisions of this Section 2.11, to convert all
or any part of a ratable Advance into any other type of
Advance; provided that any conversion of a ratable LIBOR
Advance shall be made on, and only on, the last day of the
LIBOR Interest Period applicable thereto.
(ii) Adjusted Corporate Base Rate Advances shall
continue as Adjusted Corporate Rate Advances unless and until
such Adjusted Corporate Base Rate Advances are converted into
ratable LIBOR Advances pursuant to a Conversion/Continuation
Notice from Borrower in accordance with Section 2.11(g)(iv).
Ratable LIBOR Advances shall continue until the end of the
then applicable LIBOR Interest Period therefor, at which time
each such Advance shall be automatically converted into an
Adjusted Corporate Base Rate Advance unless the Borrower shall
have given the Administrative Agent a Conversion/Continuation
Notice in accordance with Section 2.11(g)(iv) requesting that,
at the end of such LIBOR Interest Period, such Advance either
continue as an Advance of such type for the same or another
LIBOR Interest Period.
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(iii) Notwithstanding anything to the contrary
contained in Sections 2.11(g)(i) or (g)(ii), no Advance may be
converted into a LIBOR Advance or continued as a LIBOR Advance
(except with the consent of the Majority Lenders) when any
Monetary Default or Event of Default has occurred and is
continuing.
(iv) The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice")
of each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into an Adjusted
Corporate Base Rate Advance, or 11:00 a.m. (Chicago time) at
least three (3) Business Days prior to the date of the
requested conversion or continuation, in the case of a
conversion into or continuation of a ratable LIBOR Advance,
specifying: (1) the requested date (which shall be a Business
Day) of such conversion or continuation; (2) the amount and
type of the Advance to be converted or continued; and (3) the
amounts and type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion
into or continuation of a ratable LIBOR Advance, the duration
of the LIBOR Interest Period applicable thereto.
2.12 Method of Payment. All payments of the Obligations hereunder
shall be made, without set-off, deduction, or counterclaim, in immediately
available funds to Administrative Agent at Administrative Agent's address
specified herein, or at any other Lending Installation of Administrative Agent
specified in writing by Administrative Agent to Borrower, by noon (local time)
on the date when due and shall be applied ratably by Administrative Agent among
Lenders. Each payment delivered to Administrative Agent for the account of any
Lender shall be delivered promptly by Administrative Agent to such Lender in
the same type of funds that Administrative Agent received at its address
specified herein or at any Lending Installation specified in a notice received
by Administrative Agent from such Lender. Administrative Agent is hereby
authorized to charge the account of Borrower maintained with First Chicago for
each payment of principal, interest and fees as it becomes due hereunder.
2.13 Default. Notwithstanding the foregoing, during the
continuance of a Monetary Default or an Event of Default, Borrower shall not
have the right to request a LIBOR Advance, request a Competitive Bid Loan,
select a new LIBOR Interest Period for an existing ratable LIBOR Advance or
convert any Adjusted Corporate Base Rate Advance to a ratable LIBOR Advance.
During the continuance of a Monetary Default or an Event of Default, at the
election of the Majority Lenders, by notice to Borrower, outstanding Advances
shall bear interest at the applicable Default Rates until such Monetary Default
or Event of Default ceases to exist or the Obligations are paid in full.
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2.14 Lending Installations. Each Lender may book its Advances at
any Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and Borrower, designate a Lending
Installation through which Advances will be made by it and for whose account
payments are to be made.
2.15 Non-Receipt of Funds by Administrative Agent. Unless Borrower or a
Lender, as the case may be, notifies Administrative Agent prior to the date on
which it is scheduled to make payment to Administrative Agent of (i) in the case
of a Lender, an Advance, or (ii) in the case of Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account of the
Lenders, that it does not intend to make such payment, Administrative Agent may
assume that such payment has been made. Administrative Agent may, but shall not
be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or Borrower, as the
case may be, has not in fact made such payment to Administrative Agent, the
recipient of such payment shall, on demand by Administrative Agent, repay to
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by Administrative Agent until the date Administrative Agent
recovers such amount at a rate per annum equal to (i) in the case of payment by
a Lender, the Federal Funds Effective Rate (as determined by Administrative
Agent) for such day or (ii) in the case of payment by Borrower, the interest
rate applicable to the relevant Advance.
2.16 Swingline Loans. In addition to the other options available
to Borrower hereunder, up to $15,000,000 of the Swingline Commitment, shall be
available for Swingline Loans subject to the following terms and conditions.
Swingline Loans shall be made available for same day borrowings provided that
notice is given in accordance with Section 2.11 hereof. All Swingline Loans
shall bear interest at the Adjusted Corporate Base Rate and shall be deemed to
be Adjusted Corporate Base Rate Advances. In no event shall the Swingline
Lender be required to fund a Swingline Loan if it would increase the total
aggregate outstanding Loans by Swingline Lender hereunder plus its Percentage
of Facility Letter of Credit Obligations to an amount in excess of its
Commitment. Upon request of the Swingline Lender made to all the Lenders, each
Lender irrevocably agrees to purchase its Percentage of any Swingline Loan made
by the Swingline Lender regardless of whether the conditions for disbursement
are satisfied at the time of such purchase, including the existence of an Event
of Default hereunder provided no Lender shall be required to have total
outstanding Loans (other than Competitive Bid Loans) plus its Percentage of
Facility Letters of Credit to be in an amount greater than its Commitment.
Such purchase shall take place on the date of the request by Swingline Lender
so long as such request is made by noon (Chicago time), otherwise on the
Business Day following such request. All requests for purchase shall be in
writing. From and after the date it is so purchased, each such Swingline Loan
shall, to the extent purchased, (i) be treated as a Loan made by the purchasing
Lenders
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and not by the selling Lender for all purposes under this Agreement and the
payment of the purchase price by a Lender shall be deemed to be the making of a
Loan by such Lender and shall constitute outstanding principal under such
Lender's Note, and (ii) shall no longer be considered a Swingline Loan except
that all interest accruing on or attributable to such Swingline Loan for the
period prior to the date of such purchase shall be paid when due by the
Borrower to the Administrative Agent for the benefit of the Swingline Lender
and all such amounts accruing on or attributable to such Loans for the period
from and after the date of such purchase shall be paid when due by the Borrower
to the Administrative Agent for the benefit of the purchasing Lenders. If
prior to purchasing its Percentage of a Swingline Loan one of the events
described in Section 10.10 shall have occurred and such event prevents the
consummation of the purchase contemplated by preceding provisions, each Lender
will purchase an undivided participating interest in the outstanding Swingline
Loan in an amount equal to its Percentage of such Swingline Loan. From and
after the date of each Lender's purchase of its participating interest in a
Swingline Loan, if the Swingline Lender receives any payment on account
thereof, the Swingline Lender will distribute to such Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); provided, however, that in
the event that such payment was received by the Swingline Lender and is
required to be returned to the Borrower, each Lender will return to the
Swingline Lender any portion thereof previously distributed by the Swingline
Lender to it. If any Lender fails to so purchase its Percentage of any
Swingline Loan, such Lender shall be deemed to be a Defaulting Lender
hereunder. No Swingline Loan shall be outstanding for more than five (5) days
at a time and Swingline Loans shall not be outstanding for more than a total of
ten (10) days during any month.
2.17 Competitive Bid Loans.
(a) Competitive Bid Option. In addition to ratable
Advances pursuant to Section 2.5, but subject to the terms and conditions of
this Agreement (including, without limitation the limitation set forth in
Section 2.1(a) as to the maximum Allocated Facility Amount), the Borrower may,
as set forth in this Section 2.17, but only during a Rating Pricing Period,
request the Lenders, prior to the Maturity Date, to make offers to make
Competitive Bid Loans to the Borrower. Each Lender may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.17. Competitive Bid Loans shall be evidenced by the Competitive Bid Notes.
(b) Competitive Bid Quote Request. When the Borrower
wishes to request offers to make Competitive Bid Loans under this Section 2.17,
it shall transmit to the Administrative Agent by telecopy a Competitive Bid
Quote Request substantially in the form of Exhibit C-1 hereto so as to be
received no later than (i) 10:00 a.m. (Chicago time) at least five Business
Days prior to the Borrowing Date proposed therein, in the case of a request for
a Competitive LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one
Business Day
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prior to the Borrowing Date proposed therein, in the case of a request for an
Absolute Rate specifying:
(i) the proposed Borrowing Date for the
proposed Competitive Bid Loan,
(ii) the requested aggregate principal
amount of such Competitive Bid Loan,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin or an
Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a
Competitive LIBOR Margin is requested, or the Absolute
Interest Period, if an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
(but not more than five) Interest Period in a single Competitive Bid Quote
Request. No Competitive Bid Quote Request shall be given within five Business
Days (or such other number of days as the Borrower and the Administrative Agent
may agree) of any other Competitive Bid Quote Request. A Competitive Bid Quote
Request that does not conform substantially to the form of Exhibit C-1 hereto
shall be rejected, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly and
in any event before the close of business on the same Business Day of receipt
of a Competitive Bid Quote Request that is not rejected pursuant to Section
2.17(b), the Administrative Agent shall send to each of the Lenders by telecopy
an Invitation for Competitive Bid Quotes substantially in the form of Exhibit
C-2 hereto, which shall constitute an invitation by the Borrower to each Lender
to submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this
Section 2.17.
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole
discretion, submit a Competitive Bid Quote containing an offer
or offers to make Competitive Bid Loans in response to any
Invitation for Competitive Bid Quotes. Each Competitive Bid
Quote must comply with the requirements of this Section
2.17(d) and must be submitted to the Administrative Agent by
telex or telecopy at its offices not later than (a) 2:00 p.m.
(Chicago time) at least four Business Days prior to the
proposed Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice
to the Lenders, such other time and
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rate as the Borrower and the Administrative Agent may agree);
provided that Competitive Bid Quotes submitted by First
Chicago may only be submitted if the Administrative Agent or
First Chicago notifies the Borrower of the terms of the Offer
or Offers contained therein no later than 30 minutes prior to
the latest time at which the relevant Competitive Bid Quotes
must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be
in substantially the form of Exhibit C-3 hereto and shall in
any case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in the
applicable Invitation for Competitive Bid Quotes,
(b) the principal amount of the
Competitive Bid Loan for which each such offer is
being made, which principal amount (1) may be greater
than, less than or equal to the Commitment of the
quoting Lender, (2) must be at least $10,000,000 and
an integral multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for each such
Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be accepted by the
Borrower, and
(e) the identity of the quoting
Lender.
(iii) The Administrative Agent shall
reject any Competitive Bid Quote that:
(a) is not substantially in the
form of Exhibit C-3 hereto or does not specify all of
the information required by Section 2.17(d)(ii),
(b) contains qualifying,
conditional or similar language, other than any such
language contained in Exhibit C-3 hereto,
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(c) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bid Quotes, or
(d) arrives after the time set
forth in Section 2.17(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 2.17(d)(iii), then the Administrative Agent shall
notify the relevant Lender of such rejection as soon as
practical.
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.17(d) and (ii) 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 Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to
correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Competitive LIBOR Margins or Absolute
Rate, as the case may be, so offered.
(f) Acceptance and Notice by Borrower. Not later than
(i) 6:00 p.m. (Chicago time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin or (ii)
10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of a
request for an Absolute Rate (or, in either case upon reasonable prior notice
to the Lenders, such other time and date as the Borrower and the Administrative
Agent may agree), the Borrower shall notify the Administrative Agent of its
acceptance or rejection of the offers so notified to it pursuant to Section
2.17(e); provided, however, that the failure by the Borrower to give such
notice to the Administrative Agent shall be deemed to be a rejection of all
such offers. In the case of acceptance, such notice (a "Competitive Bid
Borrowing Notice") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the terms of Section
2.17(d)(iii)); provided that:
(i) the aggregate principal amount of
all Competitive Bid Loans to be disbursed on a given Borrowing
Date 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 LIBOR Margins or
Absolute Rates, as the case may be, and
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(iii) the Borrower may not accept any
offer that is described in Section 2.17(d)(iii) or that
otherwise fails to comply with the requirements of this
Agreement.
(g) Allocation by Administrative Agent. If offers are
made by two or more Lenders with the same Competitive LIBOR Margins or Absolute
Rates, as the case may be, 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
are accepted shall be allocated by the Administrative Agent among such Lenders
as nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers provided, however, that no Lender shall be
allocated any Competitive Bid Loan which is less than the minimum amount which
such Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent shall
promptly, but in any event on the same Business Day, notify each Lender of its
receipt of a Competitive Bid Borrowing Notice and the principal amounts of the
Competitive Bid Loans allocated to each participating Lender.
(h) Administration Fee. The Borrower hereby agrees to
pay to the Administrative Agent an administration fee of $2,500 per each
Competitive Bid Quote Request transmitted by the Borrower to the Administrative
Agent pursuant to Section 2.17(b). Such administration fee shall be payable
monthly in arrears on the first Business Day of each month and on the Maturity
Date (or such earlier date on which the Aggregate Commitment shall terminate or
be cancelled) for any period then ending for which such fee, if any, shall not
have been theretofore paid.
(i) Other Terms. Any Competitive Bid Loan shall not
reduce the Commitment of the Lender making such Competitive Bid Loan, and each
such Lender shall continue to be obligated to fund its full percentage of all
pro rata Advances under the Facility. In no event can the aggregate amount of
all Competitive Bid Loans at any time exceed fifty percent (50%) of the then
Aggregate Commitment. Competitive Bid Loans may not be continued and, if not
repaid at the end of the Interest Period applicable thereto, shall (subject to
the conditions set forth in this Agreement) be replaced by new Competitive Bid
Loans made in accordance with this Section 2.17 or by ratable Advances in
accordance with Section 2.11.
2.18 Voluntary Reduction of Aggregate Commitment Amount. Upon at
least five (5) days prior irrevocable written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent, Borrower shall have
the right, without premium or penalty, to terminate the Aggregate Commitment in
whole or in part provided that (a) Borrower may not reduce the Aggregate
Commitment below the Allocated Facility Amount at the time of such requested
reduction, and (b) any such partial termination shall be in the minimum
aggregate amount of Five Million Dollars (U.S. $5,000,000.00) or any integral
multiple of Five
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Million Dollars (U.S. $5,000,000.00) in excess thereof. Any partial
termination of the Aggregate Commitment shall be applied pro rata to each
Lender's Commitment.
2.19 Application of Moneys Received. All moneys collected or
received by the Administrative Agent on account of the Facility directly or
indirectly, shall be applied in the following order of priority:
(i) to the payment of all reasonable
costs incurred in the collection of such moneys of which the
Administrative Agent shall have given notice to the Borrower;
(ii) to the reimbursement of any yield
protection due to any of the Lenders in accordance with
Section 4.1;
(iii) to the payment of any fee due
pursuant to Section 3.8(b) in connection with the issuance of
a Facility Letter of Credit to the Issuing Bank, to the
payment of the Commitment Fee, Facility Fee and Facility
Letter of Credit Fee to the Lenders, if then due, and to the
payment of all fees to the Administrative Agent;
(iv) to payment of the full amount of
interest and principal on the Swingline Loans;
(v) first to interest until paid in full
and then to principal for all Lenders (other than Defaulting
Lenders) (i) as allocated by the Borrower (unless an Event of
Default exists) between Competitive Bid Loans and ratable
Advances (the amount allocated to ratable Advances to be
distributed in accordance with the Percentages of the Lenders)
or (ii) if an Event of Default exists, in accordance with the
respective Funded Percentages of the Lenders;
(vi) any other sums due to the
Administrative Agent or any Lender under any of the Loan
Documents; and
(vii) to the payment of any sums due to
each Defaulting Lender as their respective Percentages appear
(provided that Administrative Agent shall have the right to
set-off against such sums any amounts due from such Defaulting
Lender).
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ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
3.1 Obligation to Issue. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrower and the General Partner herein set forth, the Issuing Bank hereby
agrees to issue for the account of Borrower, one or more Facility Letters of
Credit in accordance with this Article III, from time to time during the period
commencing on the Agreement Execution Date and ending on a date one Business
Day prior to the Maturity Date. The Issuing Bank has, as of the Agreement
Execution Date, issued three letters of credit under the Borrower's prior
credit agreement with First Chicago as agent in the face amounts of
$979,688.00, $2,732,943.18 and $973,492.93, which letters of credit shall be
deemed Facility Letters of Credit hereunder.
3.2 Types and Amounts. The Issuing Bank shall not have any
obligation to:
(i) issue any Facility Letter of Credit
if the aggregate maximum amount then available for drawing
under Letters of Credit issued by such Issuing Bank, after
giving effect to the Facility Letter of Credit requested
hereunder, shall exceed any limit imposed by law or regulation
upon such Issuing Bank;
(ii) issue any Facility Letter of Credit
if, after giving effect thereto, either (1) the then
applicable Allocated Facility Amount would exceed the then
current Aggregate Commitment, or (2) the Facility Letter of
Credit Obligations would exceed $30,000,000;
(iii) issue any Facility Letter of Credit
having an expiration date, or containing automatic extension
provision to extend such date, to a date which is after the
Business Day immediately preceding the Maturity Date; or
(iv) issue any Facility Letter of Credit
having an expiration date, or containing automatic extension
provisions to extend such date, to a date which is more than
twelve (12) months after the date of its issuance.
3.3 Conditions. In addition to being subject to the satisfaction
of the conditions contained in Article V hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank
at such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
documents and the Loan Documents, the terms of the Loan Documents
shall control)
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and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or
decree of any court, arbitrator or governmental authority shall
purport by its terms to enjoin or restrain the Issuing Bank from
issuing the requested Facility Letter of Credit and no law, rule or
regulation applicable to the Issuing Bank and no request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over the Issuing Bank shall prohibit or
request that the Issuing Bank refrain from the issuance of Letters of
Credit generally or the issuance of the requested Facility Letter or
Credit in particular; and
(iii) there shall not exist any Default or Event of Default.
3.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least two (2) Business Days' prior written notice of
any requested issuance of a Facility Letter of Credit under this Agreement (a
"Letter of Credit Request"), a copy of which shall be sent immediately to all
Lenders (except that, in lieu of such written notice, the Borrower may give the
Issuing Bank and the Administrative Agent telephonic notice of such request if
confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) immediately (A) of a telecopy of the written notice required
hereunder which has been signed by an authorized officer, or (B) of a telex
containing all information required to be contained in such written notice and
(ii) promptly (but in no event later than the requested date of issuance) of
the written notice required hereunder containing the original signature of an
authorized officer); such notice shall be irrevocable and shall specify:
(1) whether the requested Facility Letter of Credit is, in
Borrower's belief, a Financial Letter of Credit or a
Performance Letter of Credit;
(2) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(3) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(4) the date on which such requested Facility Letter of Credit is
to expire;
(5) the purpose for which such Facility Letter of Credit is to be
issued;
(6) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
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(7) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
(b) Subject to the terms and conditions of this Article
III and provided that the applicable conditions set forth in Article V hereof
have been satisfied, the Issuing Bank shall, on the Issuance Date, issue a
Facility Letter of Credit on behalf of the Borrower in accordance with the
Letter of Credit Request and the Issuing Bank's usual and customary business
practices unless the Issuing Bank has actually received (i) written notice from
the Borrower specifically revoking the Letter of Credit Request with respect to
such Facility Letter of Credit, (ii) written notice from a Lender, which
complies with the provisions of Section 3.6(a), or (iii) written or telephonic
notice from the Administrative Agent stating that the issuance of such Facility
Letter of Credit would violate Section 3.2.
(c) The Issuing Bank shall give the Administrative Agent
(who shall promptly notify Lenders) and the Borrower written or telex notice,
or telephonic notice confirmed promptly thereafter in writing, of the issuance
of a Facility Letter of Credit (the "Issuance Notice"), which shall indicate
the Issuing Bank's reasonable determination as to whether such Facility Letter
of Credit is a Financial Letter of Credit or a Performance Letter of Credit,
which determination shall be conclusive absent manifest error.
(d) The Issuing Bank shall not extend or amend any
Facility Letter of Credit unless the requirements of this Section 3.4 are met
as though a new Facility Letter of Credit was being requested and issued.
3.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower
and the Administrative Agent (who shall promptly notify Lenders) of any draw
under a Facility Letter of Credit. Any such draw shall constitute an Advance
of the Facility in the amount of the Reimbursement Obligation with respect to
such Facility Letter of Credit and shall bear interest from the date of the
relevant drawing(s) under the pertinent Facility Letter of Credit at a rate
selected by Borrower in accordance with Section 2.11 hereof; provided that if a
Monetary Default or an Event of Default exists at the time of any such
drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings
under a Facility Letter of Credit issued by the Issuing Bank no later than the
next succeeding Business Day after the payment by the Issuing Bank and until
repaid such Reimbursement Obligation shall bear interest at the Default Rate.
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(b) Any action taken or omitted to be taken by the
Issuing Bank under or in connection with any Facility Letter of Credit, if
taken or omitted in the absence of willful misconduct or gross negligence,
shall not put the Issuing Bank under any resulting liability to any Lender or,
provided that such Issuing Bank has complied with the procedures specified in
Section 3.4 and such Lender has not given a notice contemplated by Section
3.6(a) that continues in full force and effect, relieve that Lender of its
obligations hereunder to the Issuing Bank. In determining whether to pay under
any Facility Letter of Credit, the Issuing Bank shall have no obligation
relative to the Lenders other than to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered in
compliance, and that they appear to comply on their face, with the requirements
of such Letter of Credit.
3.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in
Section 3.4, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuing Bank, without recourse,
representation or warranty, an undivided interest and participation equal to
such Lender's Percentage in such Facility Letter of Credit (including, without
limitation, all obligations of the Borrower with respect thereto) and all
related rights hereunder and under the Guaranty and other Loan Documents;
provided that a Letter of Credit issued by the Issuing Bank shall not be deemed
to be a Facility Letter of Credit for purposes of this Section 3.6 if the
Issuing Bank shall have received written notice from any Lender on or before
the Business Day prior to the date of its issuance of such Letter of Credit
that one or more of the conditions contained in Section 5.2 is not then
satisfied, and in the event the Issuing Bank receives such a notice it shall
have no further obligation to issue any Facility Letter of Credit until such
notice is withdrawn by that Lender or the Issuing Bank receives a notice from
the Administrative Agent that such condition has been effectively waived in
accordance with the provisions of this Agreement. Each Lender's obligation to
make further Loans to Borrower (other than any payments such Lender is required
to make under subparagraph (b) below) or to purchase an interest from the
Issuing Bank in any subsequent letters of credit issued by the Issuing Bank on
behalf of Borrower shall be reduced by such Lender's Percentage of the undrawn
portion of each Facility Letter of Credit outstanding.
(b) In the event that the Issuing Bank makes any payment
under any Facility Letter of Credit and the Borrower shall not have repaid such
amount to the Issuing Bank pursuant to Section 3.7 hereof, the Issuing Bank
shall promptly notify the Administrative Agent, which shall promptly notify
each Lender of such failure, and each Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of the Issuing Bank the amount
of such Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Lender's payments of its Percentage of such Reimbursement Obligation as
aforesaid shall be deemed to be a Loan by such Lender and shall constitute
outstanding principal under
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such Lender's Note. The failure of any Lender to make available to the
Administrative Agent for the account of the Issuing Bank its Percentage of the
unreimbursed amount of any such payment shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the
Administrative Agent its Percentage of the unreimbursed amount of any payment
on the date such payment is to be made. Any Lender which fails to make any
payment required pursuant to this Section 3.6(b) shall be deemed to be a
Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on
account of a Reimbursement Obligation, including any interest thereon, the
Issuing Bank shall promptly pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Lender which has funded its
participating interest therein, in immediately available funds, an amount equal
to such Lender's Percentage thereof.
(d) Upon the request of the Administrative Agent or any
Lender, the Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which the Issuing Bank is party and
such other documentation as may reasonably be requested by the Administrative
Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this
Agreement relating to the issuance of such Facility Letter of Credit, and such
payments shall be made in accordance with the terms and conditions of this
Agreement under all circumstances.
3.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative
Agent for the account of the Issuing Bank the amount of all Advances for
Reimbursement Obligations, interest and other amounts payable to the Issuing
Bank under or in connection with any Facility Letter of Credit when due,
irrespective of any claim, set-off, defense or other right which the Borrower
may have at any time against any Issuing Bank or any other Person, under all
circumstances, including without limitation any of the following circumstances:
(i) any lack of validity or
enforceability of this Agreement or any of the other Loan
Documents;
(ii) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time
against a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or
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any Person for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transactions between the Borrower and the beneficiary named in
any Facility Letter of Credit);
(iii) any draft, certificate or any other
document presented under the Facility Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any
respect of any statement therein being untrue or inaccurate in
any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the terms
of any of the Loan Documents; or
(v) the occurrence of any Default or
Event of Default.
(b) In the event any payment by the Borrower received by
the Issuing Bank or the Administrative Agent with respect to a Facility Letter
of Credit and distributed by the Administrative Agent to the Lenders on account
of their participations is thereafter set aside, avoided or recovered from the
Administrative Agent or Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which
received such distribution shall, upon demand by the Administrative Agent,
contribute such Lender's Percentage of the amount set aside, avoided or
recovered together with interest at the rate required to be paid by the Issuing
Bank or the Administrative Agent upon the amount required to be repaid by the
Issuing Bank or the Administrative Agent.
3.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent,
for the ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "Facility Letter of Credit Fee") with respect
to each Facility Letter of Credit that is equal to (i) the LIBOR Applicable
Margin in effect from time to time in the case of Financial Letters of Credit,
and (ii) the LIBOR Applicable Margin from time to time minus 0.25% in the case
of Performance Letters of Credit. The Facility Letter of Credit Fee relating
to any Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of
any Facility Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Maturity Date. The Administrative Agent shall promptly remit
such Facility Letter of Credit Fees, when paid, to the other Lenders in
accordance with their Percentages thereof. The Borrower shall not have any
liability to any Lender for the failure of the Administrative Agent to promptly
deliver funds to any such Lender and shall be deemed to have made all such
payments on the date the
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respective payment is made by the Borrower to the Administrative Agent,
provided such payment is received by the time specified in Section 2.12 hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.15% of the face amount of each
Facility Letter of Credit, payable by the Borrower on the Issuance Date for
each such Facility Letter of Credit. The Issuing Bank shall also be entitled
to receive its reasonable out-of-pocket costs and the Issuing Bank's standard
charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.
3.9 Letter of Credit Collateral Account. The Borrower hereby
agrees that it will, until the Maturity Date, maintain a special collateral
account (the "Letter of Credit Collateral Account") at the Administrative
Agent's office at the address specified pursuant to Article XV, in the name of
the Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders, and in which the Borrower shall have no
interest other than as set forth in Section 11.1. In addition to the
foregoing, the Borrower hereby grants to the Administrative Agent, for the
benefit of the Lenders, a security interest in and to the Letter of Credit
Collateral Account and any funds that may hereafter be on deposit in such
account, including income earned thereon. The Lenders acknowledge and agree
that the Borrower has no obligation to fund the Letter of Credit Collateral
Account unless and until so required under Section 11.1 hereof.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If the adoption of or change in any law or
any governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any
applicable Lending Installation to any tax, duty, charge or
withholding on or from payments due from Borrower (excluding
federal and state taxation of the overall net income of any
Lender or applicable Lending Installation), or changes the
basis of such taxation of payments to any Lender in respect of
its Advances, its interest in the Facility Letters of Credit
or other amounts due it hereunder, or
(ii) imposes or increases or deems
applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender
or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest
rate applicable to LIBOR Advances), or
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(iii) imposes any other condition, and the
result is to increase the cost of any Lender or any applicable
Lending Installation of making, funding or maintaining loans
or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of
loans held, Letters of Credit issued or participated in or
interest received by it, by an amount deemed material by such
Lender,
then, within fifteen (15) days of demand by such Lender, Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in an
amount received which such Lender determines is attributable to making, funding
and maintaining its Advances and its Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporate entity
controlling such Lender is increased as a result of a Change (as defined
below), then, within fifteen (15) days of demand by such Lender, Borrower shall
pay such Lender the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Advances, its interest in the
Facility Letters of Credit, or its obligation to make Advances hereunder or
participate in or issue Facility Letters of Credit hereunder (after taking into
account such Lender's policies as to capital adequacy). "Change" means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines
(as defined below) or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards", including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
Without in any way affecting the Borrower's obligation to pay compensation
actually claimed by a Lender under this Section 4.2, the Borrower shall have
the right to replace any Lender which has demanded such compensation provided
that Borrower notifies such Lender that it has elected to replace such Lender
and notifies such Lender and the Administrative Agent of the identity of the
proposed replacement Lender not more than six (6) months after the date of such
Lender's most recent demand for compensation under this Section 4.2. The
Lender being replaced shall assign its Percentage of the Aggregate Commitment
and its rights and obligations under this Facility to the replacement Lender in
accordance with the requirements of Section 13.3 hereof and the
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replacement Lender shall assume such Percentage of the Aggregate Commitment and
the related obligations under this Facility prior to the Maturity Date to be
extended, all pursuant to an assignment agreement substantially in the form of
Exhibit J hereto. The purchase by the replacement Lender shall be at par (plus
all accrued and unpaid interest and any other sums owed to such Lender being
replaced hereunder) which shall be paid to the Lender being replaced upon the
execution and delivery of the assignment.
4.3 Availability of LIBOR Advances. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by
written notice to Borrower the availability of LIBOR Advances and require any
LIBOR Advances to be repaid; or if the Required Lenders determine that (i)
deposits of a type or maturity appropriate to match fund LIBOR Advances are not
available, the Administrative Agent shall suspend by written notice to Borrower
the availability of LIBOR Advances with respect to any LIBOR Advances made
after the date of any such determination, or (ii) an interest rate applicable
to a LIBOR Advance does not accurately reflect the cost of making a LIBOR
Advance, and, if for any reason whatsoever the provisions of Section 4.1 are
inapplicable, the Administrative Agent shall suspend by written notice to
Borrower the availability of LIBOR Advances with respect to any LIBOR Advances
made after the date of any such determination.
4.4 Funding Indemnification. If any payment of a ratable LIBOR
Advance or a Competitive Bid Loan occurs on a date which is not the last day of
the applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable LIBOR Advance or a Competitive Bid Loan is not made on
the date specified by Borrower for any reason other than default by one or more
of the Lenders, Borrower will indemnify each Lender for any loss or cost
incurred by such Lender resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
the ratable LIBOR Advance or Competitive Bid Loan, as the case may be.
4.5 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Advances to reduce any liability of
Borrower to such Lender under Sections 4.1 and 4.2 or to avoid the
unavailability of a LIBOR Advance, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement
of such Lender as to the amount due, if any, under Sections 4.1, 4.2 or 4.4
hereof. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
Advance shall be calculated as though each Lender funded its LIBOR Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Adjusted LIBOR Rate applicable
to such Advance, whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the written statement shall be payable
on demand after receipt by
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Borrower of the written statement. The obligations of Borrower under Sections
4.1, 4.2 and 4.4 hereof shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Closing. The Lenders shall not be
required to make the initial Advance hereunder, nor shall the Issuing Bank be
required to issue the initial Facility Letter of Credit hereunder, unless (i)
the Borrower shall have paid all fees then due and payable to the Lenders, the
Documentation Agent, the Arrangers and the Administrative Agent hereunder, (ii)
all of the conditions set forth in Section 5.2 are satisfied, and (iii) the
Borrower shall have furnished to the Administrative Agent, in form and
substance satisfactory to the Lenders and their counsel and with sufficient
copies for the Lenders, the following:
(a) Certificates of Limited Partnership/Incorporation. A
copy of the Certificate of Limited Partnership for the Borrower and a copy of
the articles of incorporation of General Partner, each certified by the
appropriate Secretary of State or equivalent state official.
(b) Agreements of Limited Partnership/Bylaws. A copy of
the Agreement of Limited Partnership for the Borrower and a copy of the bylaws
of the General Partner, including all amendments thereto, each certified by the
Secretary or an Assistant Secretary of the General Partner as being in full
force and effect on the Agreement Execution Date.
(c) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where the Borrower and General Partner are organized, dated as of the
most recent practicable date, showing the good standing or partnership
qualification (if issued) of (i) Borrower, and (ii) General Partner.
(d) Foreign Qualification Certificates. A certified copy
of a certificate from the Secretary of State or equivalent state official of
the state where the Borrower and General Partner maintain their principal place
of business, dated as of the most recent practicable date, showing the
qualification to transact business in such state as a foreign limited
partnership or foreign corporation, as the case may be, for (i) Borrower, and
(ii) General Partner.
(e) Resolutions. A copy of a resolution or resolutions
and adopted by the Board of Directors of the General Partner, certified by the
Secretary or an Assistant Secretary of the General Partner as being in full
force and effect on the Agreement Execution Date, authorizing the Advances
provided for herein and the execution, delivery and
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performance of the Loan Documents by the General Partner to be executed and
delivered by it hereunder on behalf of itself and Borrower.
(f) Incumbency Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of the General Partner and dated the
Agreement Execution Date, as to the incumbency, and containing the specimen
signature or signatures, of the Persons authorized to execute and deliver the
Loan Documents to be executed and delivered by it and Borrower hereunder.
(g) Loan Documents. Originals of the Loan Documents (in
such quantities as the Lenders may reasonably request), duly executed by
authorized officers of the appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion,
dated the Agreement Execution Date, from outside counsel for the Borrower which
counsel is reasonably satisfactory to Administrative Agent, substantially in
the form attached hereto as Exhibit E.
(i) Opinion of General Partner's Counsel. A written
opinion, dated the Agreement Execution Date, from outside counsel for the
General Partner which counsel is reasonably satisfactory to Administrative
Agent, substantially in the form attached hereto as Exhibit F.
(j) Insurance. Original or certified copies of insurance
policies or binders therefor, with accompanying receipts showing current
payment of all premiums, evidencing that Borrower carries insurance on the
Unencumbered Assets which satisfies the Administrative Agent's insurance
requirements, including, without limitation:
(i) Property and casualty insurance (including
coverage for flood and other water damage for any Unencumbered
Assets located within a 100-year flood plain) in the amount of
the replacement cost of the improvements at the Unencumbered
Assets;
(ii) Loss of rental income insurance in the amount
not less than one year's Gross Revenues from the Unencumbered
Assets; and
(iii) Comprehensive general liability insurance in
the amount of $1,000,000 per occurrence.
All insurance must be carried by companies with a Best
Insurance Reports (1992) Policyholder's and Financial Size Rating of "A-VII" or
better.
(k) [Intentionally Omitted]
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(l) Financial and Related Information. The following
information:
(i) A certificate, signed by an officer
of the Borrower, stating that on the Agreement Execution Date
no Default or Event of Default has occurred and is continuing
and that all representations and warranties of the Borrower
contained herein are true and correct as of the Agreement
Execution Date as and to the extent set forth herein;
(ii) The most recent financial statements
of the Borrower and General Partner and a certificate from a
Qualified Officer of the Borrower that no change in the
Borrower's financial condition that would have a Material
Adverse Effect has occurred since September 30, 1996;
(iii) Evidence of sufficient Unencumbered
Assets (which evidence may include pay-off letters (together
with evidence of payment or a direction of Borrower to use a
portion of the proceeds of the Advances to repay such
Indebtedness), mortgage releases and/or title policies) to
assist the Administrative Agent in determining the Borrower's
compliance with the covenants set forth in Article IX herein;
(iv) Written money transfer instructions,
in substantially the form of Exhibit G hereto, addressed to
the Administrative Agent and signed by a Qualified Officer,
together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested; and
(v) Operating statements for the
Unencumbered Assets and other evidence of income and expenses
to assist the Administrative Agent in determining Borrower's
compliance with the covenants set forth in Article VIII
herein.
(m) Other Evidence as any Lender May Require. Such other
evidence as any Lender may reasonably request to establish the consummation of
the transactions contemplated hereby, the taking of all necessary actions in
any proceedings in connection herewith and compliance with the conditions set
forth in this Agreement.
When all such conditions have been fulfilled (or, in the Lenders' sole
discretion, waived by Lenders), the Lenders shall confirm in writing to
Borrower that the initial Advance is then available to Borrower hereunder.
5.2 Conditions Precedent to Subsequent Advances. Advances after
the initial Advance shall be made from time to time as requested by Borrower,
and the obligation of each Lender to make any Advance (including Swingline
Loans) is subject to the following terms and conditions:
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(a) prior to each such Advance no Default or Event of
Default shall have occurred and be continuing under this Agreement or any of
the Loan Documents and, if required by Administrative Agent, Borrower shall
deliver a certificate of Borrower to such effect; and
(b) The representations and warranties contained in
Article VI and VII are true and correct as of such borrowing date, Issuance
Date, or date of conversion and/or continuation as and to the extent set forth
therein, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date.
Subject to the last grammatical paragraphs of Article VI and VII hereof,
each Borrowing Notice, Letter of Credit Request, and Conversion/Continuation
Notice shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 5.2(a) and (b) have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1 Existence. Borrower is a limited partnership duly organized
and existing under the laws of the State of Delaware, with its principal place
of business in the State of Illinois, and is duly qualified as a foreign
limited partnership, properly licensed (if required), in good standing and has
all requisite authority to conduct its business in each jurisdiction in which
it owns Properties and, except where the failure to be so qualified or to
obtain such authority would not have a Material Adverse Effect, in each other
jurisdiction in which its business is conducted. Each of its Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite authority to conduct its
business in each jurisdiction in which it owns Property, and except where the
failure to be so qualified or to obtain such authority would not have a
Material Adverse Effect, in each other jurisdiction in which it conducts
business.
6.2 Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by Borrower
hereunder are within the partnership authority of such entity and the corporate
powers of the general partners of such entity, have been duly authorized by all
requisite action, and are not in conflict with the terms of any organizational
instruments of such entity, or any instrument or agreement to which Borrower or
General Partner is a party or by which Borrower, General Partner or any of
their respective assets may be bound or affected.
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6.3 Power of Officers. The officers of the general partner of
Borrower executing the Loan Documents required to be delivered by such entities
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
6.4 Government and Other Approvals. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
6.5 Solvency.
(i) Immediately after the Agreement
Execution Date and immediately following the making of each
Loan and after giving effect to the application of the
proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at
a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Properties of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on
their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the
Borrower and its Subsidiaries on a consolidated basis will not
have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the date
hereof.
(ii) Borrower does not intend to, or to
permit any of its Subsidiaries to incur debts beyond its
ability to pay such debts as they mature, taking into account
the timing of and amounts of cash to be received by it or any
such Subsidiary and the timing of the amounts of cash to be
payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
6.6 Compliance With Laws. There is no judgment, decree or order
or any law, rule or regulation of any court or governmental authority binding
on Borrower or any of its Subsidiaries which would be contravened by the
execution, delivery or performance of the Loan Documents required hereunder.
6.7 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of the Borrower, and the Notes when executed and
delivered will be the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in
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accordance with their respective terms, and the Loan Documents required
hereunder, when executed and delivered, will be similarly legal, valid, binding
and enforceable except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the rights of creditors generally.
6.8 Title to Property. To the best of Borrower's knowledge after
due inquiry, Borrower or its Subsidiaries has good and marketable title to the
Properties and assets reflected in the financial statements as owned by it or
any such Subsidiary free and clear of Liens except for the Permitted Liens.
The execution, delivery or performance of the Loan Documents required to be
delivered by the Borrower hereunder will not result in the creation of any Lien
on the Properties. No consent to the transactions contemplated hereunder is
required from any ground lessor or mortgagee or beneficiary under a deed of
trust or any other party except as has been delivered to the Lenders.
6.9 Litigation. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of Borrower's knowledge, threatened against or affecting the Borrower or any of
the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the Borrower and/or any of
the Properties and/or would cause a Material Adverse Financial Change of
Borrower or materially impair the Borrower's ability to perform its obligations
hereunder or under any instrument or agreement required hereunder, except as
disclosed on Schedule 6.9 hereto, or otherwise disclosed to Lenders in
accordance with the terms hereof.
6.10 Events of Default. No Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the Borrower under any of the Loan Documents or any other document to which
Borrower is a party.
6.11 Investment Company Act of 1940. Borrower is not and will by
such acts as may be necessary continue not to be, an investment company within
the meaning of the Investment Company Act of 1940.
6.12 Public Utility Holding Company Act. The Borrower is not a
"holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
6.13 Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
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6.14 No Material Adverse Financial Change. To the best knowledge
of Borrower, there has been no Material Adverse Financial Change in the
condition of Borrower since the date of the financial and/or operating
statements most recently submitted to the Lenders.
6.15 Financial Information. All financial statements furnished to
the Lenders by or at the direction of the Borrower and all other financial
information and data furnished by the Borrower to the Lenders are complete and
correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as
of such date. The Borrower has no contingent obligations, liabilities for
taxes or other outstanding financial obligations which are material in the
aggregate, except as disclosed in such statements, information and data.
6.16 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents
and the transactions contemplated therein is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lenders
will be, true and accurate (taken as a whole) in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time.
6.17 ERISA. (i) Borrower is not an entity deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan within the meaning of Section 4975 of
the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
6.18 Taxes. All required tax returns have been filed by Borrower
with the appropriate authorities except to the extent that extensions of time
to file have been requested, granted and have not expired or except to the
extent such taxes are being contested in good faith and for which adequate
reserves, in accordance with GAAP, are being maintained.
6.19 Environmental Matters. Except as disclosed in Schedule 6.19,
each of the following representations and warranties is true and correct except
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect:
(i) To the knowledge of the Borrower,
the Properties of Borrower, its Subsidiaries, and Investment
Affiliates do not contain any Materials of Environmental
Concern in amounts or concentrations which
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constitute a violation of, or could reasonably give rise to
liability under, Environmental Laws.
(ii) Borrower has not received any
written notice alleging that any or all of the Properties of
Borrower and its Subsidiaries and Investment Affiliates and
all operations at the Properties are not in compliance with
all applicable Environmental Laws. Further, Borrower has not
received any written notice alleging the existence of any
contamination at or under such Properties in amounts or
concentrations which constitute a violation of any
Environmental Law, or any violation of any Environmental Law
with respect to such Properties for which Borrower, its
Subsidiaries or Investment Affiliates is or could be liable.
(iii) Neither Borrower nor any of its
Subsidiaries or Investment Affiliates has received any written
notice of non-compliance, liability or potential liability
regarding Environmental Laws with regard to any of the
Properties, nor does it have knowledge that any such notice
will be received or is being threatened.
(iv) To the knowledge of Borrower during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, Materials of
Environmental Concern have not been transported or disposed of
from the Properties of Borrower and its Subsidiaries and
Investment Affiliates in violation of, or in a manner or to a
location which could reasonably give rise to liability of
Borrower, any Subsidiary, or any Investment Affiliate under,
Environmental Laws, nor during the ownership of the Properties
by any or all of Borrower, its Subsidiaries and Investment
Affiliates have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any
of such Properties in violation of, or in a manner that could
give rise to liability of Borrower, any Subsidiary or any
Investment Affiliate under, any applicable Environmental Laws.
(v) No judicial proceedings or
governmental or administrative action is pending, or, to the
knowledge of Borrower, threatened, under any Environmental Law
to which Borrower, any of its Subsidiaries, or any Investment
Affiliate, is named as a party with respect to the Properties
of such entity, nor are there any consent decrees or other
decrees, consent orders, administrative order or other orders,
or other administrative or judicial requirements outstanding
under any Environmental Law with respect to such Properties
for which Borrower, its Subsidiaries, or any Investment
Affiliate is or could be liable.
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(vi) To the knowledge of Borrower during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, there has been no
release or threat of release of Materials of Environmental
Concern at or from the Properties of Borrower and its
Subsidiaries and Investment Affiliates, or arising from or
related to the operations of such entity in connection with
the Properties in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
6.20 Insurance. Borrower has obtained the insurance which Borrower
is required to furnish to Lenders under Section 5.1(j) hereof.
6.21 No Brokers. Borrower has dealt with no brokers in connection
with this Facility, and no brokerage fees or commissions are payable by or to
any Person in connection with this Agreement or the Advances. Lenders shall
not be responsible for the payment of any fees or commissions to any broker and
Borrower shall indemnify, defend and hold Lenders harmless from and against any
claims, liabilities, obligations, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) made against or incurred by
Lenders as a result of claims made or actions instituted by any broker or
Person claiming by, through or under Borrower in connection with the Facility.
6.22 No Violation of Usury Laws. No aspect of any of the
transactions contemplated herein violate or will violate any usury laws or laws
regarding the validity of agreements to pay interest in effect on the date
hereof.
6.23 Not a Foreign Person. Borrower is not a "foreign person"
within the meaning of Section 1445 or 7701 of the Internal Revenue Code.
6.24 No Trade Name. Except for the name "First Industrial," and
except as otherwise set forth on Schedule 6.24 attached hereto, Borrower does
not use any trade name and has not and does not do business under any name
other than their actual names set forth herein. The principal place of
business of Borrower is as stated in the recitals hereto.
6.25 Subsidiaries. Schedule 6.25 hereto contains an accurate list
of all of the presently existing Subsidiaries of Borrower, setting forth their
respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
have been duly authorized and issued and are fully paid and non-assessable.
6.26 Unencumbered Assets. Schedule 6.26 hereto contains a complete
and accurate description of Unencumbered Assets as of the Agreement Execution
Date and as supplemented from time to time including the entity that owns each
Unencumbered Asset. With respect to each Project identified from time to time
as an Unencumbered Asset,
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Borrower hereby represents and warrants as follows except to the extent
disclosed in writing to the Lenders and approved by the Majority Lenders (which
approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered
Asset is located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood hazards
pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, as amended, or any successor law, or, if located within
any such area, Borrower has obtained and will maintain the insurance prescribed
in Section 5.1(j) hereof.
(b) To the Borrower's knowledge, the Unencumbered Asset
and the present use and occupancy thereof are in material compliance with all
applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, and other similar
laws ("Applicable Laws").
(c) The Unencumbered Asset is served by all utilities
required for the current or contemplated use thereof. All utility service is
provided by public utilities and the Unencumbered Asset has accepted or is
equipped to accept such utility service.
(d) All public roads and streets necessary for service of
and access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are physically
and legally open for use by the public.
(e) The Unencumbered Asset is served by public water and
sewer systems or, if the Unencumbered Asset is not serviced by a public water
and sewer system, such alternate systems are adequate and meet, in all material
respects, all requirements and regulations of, and otherwise complies in all
material respects with, all Applicable Laws with respect to such alternate
systems.
(f) Borrower is not aware of any latent or patent
structural or other significant deficiency of the Unencumbered Asset. The
Unencumbered Asset is free of damage and waste that would materially and
adversely affect the value of the Unencumbered Asset, is in good repair and
there is no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from damage caused by fire or other casualty. There
is no pending or, to the actual knowledge of Borrower threatened condemnation
proceedings affecting the Unencumbered Asset, or any material part thereof.
(g) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in a
good and safe condition and repair and to Borrower's knowledge, in material
compliance with all Applicable Laws with respect to such systems.
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(h) All improvements on the Unencumbered Asset lie within
the boundaries and building restrictions of the legal description of record of
the Unencumbered Asset, no such improvements encroach upon easements
benefitting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset and
no improvements on adjoining properties encroach upon the Unencumbered Asset or
easements benefitting the Unencumbered Asset other than encroachments that do
not materially adversely affect the use or occupancy of the Unencumbered Asset.
All amenities, access routes or other items that materially benefit the
Unencumbered Asset are under direct control of Borrower, constitute permanent
easements that benefit all or part of the Unencumbered Asset or are public
property, and the Unencumbered Asset, by virtue of such easements or otherwise,
is contiguous to a physically open, dedicated all weather public street, and
has the necessary permits for ingress and egress.
(i) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments, or
other outstanding charges affecting the Unencumbered Asset except to the extent
such items are being contested in good faith and as to which adequate reserves
have been provided.
A breach of any of the representations and warranties contained in this Section
6.26 with respect to a Project shall disqualify such Project from being an
Unencumbered Asset for so long as such breach continues (unless otherwise
approved by the Majority Lenders) but shall not constitute a Default (unless
the elimination of such Property as an Unencumbered Asset results in a Default
under one of the other provisions of this Agreement).
Borrower agrees that all of its representations and warranties set
forth in Article VI of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Majority Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Majority Lenders) upon each request for
disbursement of an Advance. Each request for disbursement hereunder shall
constitute a reaffirmation of such representations and warranties as deemed
modified in accordance with the disclosures made and approved, as aforesaid, as
of the date of such request and disbursement.
ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
The General Partner hereby represents and warrants that:
7.1 Existence. The General Partner is a corporation duly
organized and existing under the laws of the State of Maryland, with its
principal place of business in the State of
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Illinois, is duly qualified as a foreign corporation and properly licensed (if
required) and in good standing in each jurisdiction where the failure to
qualify or be licensed (if required) would constitute a Material Adverse
Financial Change with respect to the General Partner or have a Material Adverse
Effect on the business or properties of the General Partner.
7.2 Corporate Powers. The execution, delivery and performance of
the Loan Documents required to be delivered by the General Partner hereunder
are within the corporate powers of the General Partner, have been duly
authorized by all requisite corporate action, and are not in conflict with the
terms of any organizational instruments of the General Partner, or any
instrument or agreement to which the General Partner is a party or by which
General Partner or any of its assets is bound or affected.
7.3 Power of Officers. The officers of the General Partner
executing the Loan Documents required to be delivered by the General Partner
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
7.4 Government and Other Approvals. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
7.5 Compliance With Laws. There is no judgment, decree or order
or any law, rule or regulation of any court or governmental authority binding
on the General Partner which would be contravened by the execution, delivery or
performance of the Loan Documents required hereunder.
7.6 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of the General Partner, as the general partner of
Borrower, enforceable against the General Partner in accordance with its
respective terms, and the Loan Documents required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the rights of
creditors generally.
7.7 Liens; Consents. The execution, delivery or performance of
the Loan Documents required to be delivered by the General Partner hereunder
will not result in the creation of any Lien on the Properties other than in
favor of the Lenders. No consent to the transactions hereunder is required
from any ground lessor or mortgagee or beneficiary under a deed of trust or any
other party except as has been delivered to the Lenders.
7.8 Litigation. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of General Partner's knowledge, threatened against or affecting the General
Partner or any of the Properties, the adverse
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determination of which individually or in the aggregate would have a Material
Adverse Effect on the General Partner and/or any of the Collateral and/or would
cause a Material Adverse Financial Change with respect to the General Partner
or materially impair the General Partner's ability to perform its obligations
hereunder or under any instrument or agreement required hereunder, except as
disclosed on Schedule 7.8 hereto, or otherwise disclosed to Lenders in
accordance with the terms hereof.
7.9 Events of Default. No Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the General Partner under any of the Loan Documents or any other document to
which General Partner is a party.
7.10 Investment Company Act of 1940. The General Partner is not,
and will by such acts as may be necessary continue not to be, an investment
company within the meaning of the Investment Company Act of 1940.
7.11 Public Utility Holding Company Act. The General Partner is
not a "holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
7.12 No Material Adverse Financial Change. There has been no
Material Adverse Financial Change in the condition of the General Partner since
the last date on which the financial and/or operating statements were submitted
to the Lenders.
7.13 Financial Information. All financial statements furnished to
the Lenders by or on behalf of the General Partner and all other financial
information and data furnished by or on behalf of the General Partner to the
Lenders are complete and correct in all material respects as of the date
thereof, and such financial statements have been prepared in accordance with
GAAP and fairly present the consolidated financial condition and results of
operations of the General Partner as of such date. The General Partner has no
contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as disclosed in such
statements, information and data.
7.14 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the General Partner to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions contemplated therein is, and all other such
factual information hereafter furnished by or on behalf of the General Partner
to the Lenders will be, true and accurate in all material respects (taken as a
whole) on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time.
7.15 ERISA. (i) General Partner is not an entity deemed to hold
"plan assets" within the meaning of ERISA or any regulations promulgated
thereunder of an employee
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benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I
of ERISA or any plan within the meaning of Section 4975 of the Code, and (ii)
the execution of this Agreement and the transactions contemplated hereunder do
not give rise to a prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code.
7.16 Taxes. All required tax returns have been filed by the
General Partner with the appropriate authorities except to the extent that
extensions of time to file have been requested, granted and have not expired or
except to the extent such taxes are being contested in good faith and for which
adequate reserves, in accordance with GAAP, are being maintained.
7.17 No Brokers. General Partner has dealt with no brokers in
connection with this Facility, and no brokerage fees or commissions are payable
by or to any Person in connection with this Agreement or the Advances. Lender
shall not be responsible for the payment of any fees or commissions to any
broker and General Partner shall indemnify, defend and hold Lender harmless
from and against any claims, liabilities, obligations, damages, costs and
expenses (including reasonable attorneys' fees and disbursements) made against
or incurred by Lender as a result of claims made or actions instituted by any
broker or Person claiming by, through or under the General Partner in
connection with the Facility.
7.18 Subsidiaries. Schedule 7.18 hereto contains an accurate list
of all of the presently existing Subsidiaries of General Partner, setting forth
their respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
have been duly authorized and issued and are fully paid and non-assessable.
7.19 Status. General Partner is a corporation listed and in good
standing on the New York Stock Exchange ("NYSE").
General Partner agrees that all of its representations and warranties
set forth in Article VII of this Agreement and elsewhere in this Agreement are
true on the Agreement Execution Date, and will be true on each Effective Date
in all material respects (except with respect to matters which have been
disclosed in writing to and approved by the Majority Lenders), and will be true
in all material respects (except with respect to matters which have been
disclosed in writing to and approved by the Majority Lenders) upon each request
for disbursement of an Advance. Each request for disbursement hereunder shall
constitute a reaffirmation of such representations and warranties as deemed
modified in accordance with the disclosures made and approved, as aforesaid, as
of the date of such request and disbursement.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower (and the General Partner, if expressly included in
Sections contained in this Article) covenant and agree that so long as the
Commitment of any Lender shall remain available and until the full and final
payment of all Obligations incurred under the Loan Documents they will:
8.1 Notices. Promptly give written notice to Administrative Agent
(who will promptly send such notice to Lenders) of:
(a) all litigation or arbitration proceedings affecting
the Borrower, the General Partner or any Subsidiary where the amount claimed is
$5,000,000 or more;
(b) any Default or Event of Default, specifying the
nature and the period of existence thereof and what action has been taken or
been proposed to be taken with respect thereto;
(c) all claims filed against any property owned by the
Borrower or the General Partner which, if adversely determined, could have a
Material Adverse Effect on the ability of the Borrower or the General Partner
to meet any of their obligations under the Loan Documents;
(d) the occurrence of any other event which might have a
Material Adverse Effect or cause a Material Adverse Financial Change on or with
respect to the Borrower or the General Partner;
(e) any Reportable Event or any "prohibited transaction"
(as such term is defined in Section 4975 of the Code) in connection with any
Plan or any trust created thereunder, which may, singly or in the aggregate
materially impair the ability of the Borrower or the General Partner to repay
any of its obligations under the Loan Documents, describing the nature of each
such event and the action, if any, the Borrower or the General Partner, as the
case may be, proposes to take with respect thereto;
(f) any notice from any federal, state, local or foreign
authority regarding any Hazardous Material, asbestos, or other environmental
condition, proceeding, order, claim or violation affecting any of the
Properties.
8.2 Financial Statements, Reports, Etc. The Borrower will
maintain, for itself and each Subsidiary, a system of accounting established
and administered in accordance with GAAP, and furnish to the Lenders:
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(i) as soon as available, but in any
event not later than 45 days after the close of each fiscal
quarter, for the Borrower an unaudited consolidated balance
sheet as of the close of each such period and the related
unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its
Subsidiaries for such period and the portion of the fiscal
year through the end of such period, setting forth in each
case in comparative form the figures for the previous year,
all certified by the Borrower's chief financial officer or
chief accounting officer;
(ii) As soon as available, but in any
event not later than 45 days after the close of each fiscal
quarter, for the Borrower and its Subsidiaries, related
reports in form and substance satisfactory to the Lenders, all
certified by Borrower's chief financial officer or chief
accounting officer, including a statement of Funds From
Operations, a description of Unencumbered Assets, a listing of
capital expenditures (in the level of detail as currently
disclosed in Borrower's "Supplemental Information"), a report
listing and describing all newly acquired Properties,
including their cash flow, cost and secured or unsecured
Indebtedness assumed in connection with such acquisition, if
any, summary Property information for all Properties,
including, without limitation, their Property Operating
Income, occupancy rates, square footage, property type and
date acquired or built, and such other information as may be
requested to evaluate the quarterly compliance certificate
delivered as provided below;
(iii) As soon as publicly available but in
no event later than the date such reports are to be filed with
the Securities Exchange Commission, copies of all Form 10Ks,
10Qs, 8Ks, and any other annual, quarterly, monthly or other
reports, copies of all registration statements and any other
public information which the Borrower or any of its
Subsidiaries files with the Securities Exchange Commission and
to the extent any of such reports contains information
required under the other subsections of this Section 8.2, the
information need not be furnished separately under the other
subsections;
(iv) As soon as available, but in any
event not later than 90 days after the close of each fiscal
year of the Borrower and its Subsidiaries, reports in form and
substance satisfactory to the Lenders, certified by the
Borrower's chief financial officer or chief accounting officer
containing Property Operating Income for each individual
Property included as Unencumbered Assets;
(v) Not later than forty-five (45) days
after the end of each of the first three fiscal quarters, and
not later than ninety (90) days after the end of the fiscal
year, a compliance certificate in substantially the form of
Exhibit H hereto signed by the Borrower's chief financial
officer or chief
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accounting officer confirming that Borrower is in compliance
with all of the covenants of the Loan Documents, showing the
calculations and computations necessary to determine
compliance with the financial covenants contained in this
Agreement (including such schedules and backup information as
may be necessary to demonstrate such compliance) and stating
that to such officer's best knowledge, there is no other
Default or Event of Default exists, or if any Default or Event
of Default exists, stating the nature and status thereof;
(vi) (a) As soon as possible and in any
event within 10 Business Days after the Borrower knows that
any Reportable Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of Borrower,
describing said Reportable Event and within 20 days after such
Reportable Event, a statement signed by such chief financial
officer describing the action which Borrower proposes to take
with respect thereto; and (b) within 10 Business Days of
receipt, any notice from the Internal Revenue Service, PBGC or
Department of Labor with respect to a Plan regarding any
excise tax, proposed termination of a Plan, prohibited
transaction or fiduciary violation under ERISA or the Code
which could result in any liability to Borrower or any member
of the Controlled Group in excess of $100,000; and (c) within
10 Business Days of filing, any Form 5500 filed by Borrower
with respect to a Plan, or any member of the Controlled Group
which includes a qualified accountant's opinion.
(vii) As soon as possible and in any event
within 30 days after receipt by the Borrower, a copy of (a)
any notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result
of the release by such entity, or any of its Subsidiaries, or
any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health
orsafety law or regulation by the Borrower or any of its
Subsidiaries or Investment Affiliates, which, in either case,
could be reasonably likely to have a Material Adverse Effect;
(viii) Promptly upon the furnishing thereof
to the shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished;
(ix) Promptly upon the distribution
thereof to the press or the public, copies of all press
releases;
(x) As soon as possible, and in any
event within 10 days after the Borrower knows of any fire or
other casualty or any pending or threatened condemnation or
eminent domain proceeding with respect to all or any material
portion of any Unencumbered Asset, a statement signed by the
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Chief Financial Officer of Borrower, describing such fire,
casualty or condemnation and the action Borrower intends to
take with respect thereto; and
(xi) Such other information (including,
without limitation, non-financial information) as the
Administrative Agent or any Lender may from time to time
reasonably request.
8.3 Existence and Conduct of Operations. Except as permitted
herein, maintain and preserve its existence and all rights, privileges and
franchises now enjoyed and necessary for the operation of its business,
including remaining in good standing in each jurisdiction in which business is
currently operated. The Borrower and the General Partner shall carry on and
conduct their respective businesses in substantially the same manner and in
substantially the same fields of enterprise as presently conducted. The
Borrower will do, and will cause each of its Subsidiaries to do, all things
necessary to remain duly incorporated and/or duly qualified, validly existing
and in good standing as a real estate investment trust, corporation, general
partnership, limited liability company or limited partnership, as the case may
be, in its jurisdiction of incorporation/formation. The Borrower will maintain
all requisite authority to conduct its business in each jurisdiction in which
the Properties are located and, except where the failure to be so qualified
would not have a Material Adverse Effect, in each jurisdiction required to
carry on and conduct its businesses in substantially the same manner as it is
presently conducted, and, specifically, neither the Borrower nor its
Subsidiaries will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of
warehouse/industrial properties and ancillary businesses specifically related
thereto, except that the Borrower and its Subsidiaries and Investment
Affiliates may invest in other assets subject to the certain limitations
contained herein with respect to the following specified categories of assets:
(i) unimproved land; (ii) other property holdings (excluding cash, Cash
Equivalents, non-industrial Properties and Indebtedness of any Subsidiary to
the Borrower); (iii) stock holdings other than in Subsidiaries; (iv) mortgages;
and (v) joint ventures and partnerships. The total investment in any one of
categories (i), (ii), (iii), (iv) or (v) shall not exceed 10% of Implied
Capitalization Value and the total investment in all the foregoing investment
categories in the aggregate shall be less than or equal to twenty percent (20%)
of Market Value Net Worth. In addition to the foregoing restrictions,
investments in unimproved land which is not adjacent to existing improvements
and not under active planning for near term development as evidenced to the
reasonable satisfaction of Administrative Agent shall not exceed in the
aggregate 5% of Implied Capitalization Value, and no single industrial property
shall exceed 5% of Implied Capitalization Value. For the purposes of this
Section 8.3, all investments shall be valued in accordance with GAAP.
8.4 Maintenance of Properties. Maintain, preserve, protect and
keep the Properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements, normal wear and tear
excepted.
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8.5 Insurance. Provide a certificate of insurance from all
insurance carriers who maintain policies with respect to the Properties within
thirty (30) days after the end of each fiscal year, evidencing that the
insurance required to be furnished to Lenders pursuant to Section 5.1(j) hereof
is in full force and effect. Borrower shall timely pay, or cause to be paid,
all premiums on all insurance policies required under this Agreement from time
to time. Borrower shall promptly notify its insurance carrier or agent
therefor (with a copy of such notification being provided simultaneously to
Administrative Agent) if there is any occurrence which, under the terms of any
insurance policy then in effect with respect to the Properties, requires such
notification.
8.6 Payment of Obligations. Pay all taxes, assessments,
governmental charges and other obligations when due, except such as may be
contested in good faith or as to which a bona fide dispute may exist, and for
which adequate reserves have been provided in accordance with sound accounting
principles used by Borrower on the date hereof.
8.7 Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations, orders and directions of any
governmental authority having jurisdiction over Borrower, General Partner, or
any of their respective businesses.
8.8 Adequate Books. Maintain adequate books, accounts and records
in order to provide financial statements in accordance with GAAP and, if
requested by any Lender, permit employees or representatives of such Lender at
any reasonable time and upon reasonable notice to inspect and audit the
properties of Borrower and of the Consolidated Operating Partnership, and to
examine or audit the inventory, books, accounts and records of each of them and
make copies and memoranda thereof.
8.9 ERISA. Comply in all material respects with all requirements
of ERISA applicable to it with respect to each Plan.
8.10 Maintenance of Status. General Partner shall at all times (i)
remain as a corporation listed and in good standing on the New York Stock
Exchange (NYSE), and (ii) take all steps maintain General Partner's status as a
real estate investment trust in compliance with all applicable provisions of the
Code (unless otherwise consented to by the Supermajority Lenders).
8.11 Use of Proceeds. Use the proceeds of the Facility for the
general business purposes of the Borrower, including without limitation working
capital needs, closing costs, and interim funding for property acquisitions and
construction of new industrial properties, and/or payment of other debts and
obligations of Borrower.
8.12 Pre-Acquisition Environmental Investigations. Cause to be
prepared prior to the acquisition of each project that it intends to acquire an
environmental report pursuant to a standard scope of work attached as Exhibit I
hereto and made a part hereof.
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8.13 Distributions. Provided there is no Monetary Default then
existing and provided there is not an Event of Default relating to a breach of
the financial covenants contained in Section 9.10 below, the Borrower may make
distributions to its partners provided that the aggregate amount of
distributions in any period of four consecutive fiscal quarters is not in
excess of 95% of its Funds From Operations for such period. Notwithstanding
the foregoing, unless at the time of distribution there is a Monetary Default,
the Borrower shall be permitted at all times to distribute whatever amount is
necessary to maintain the General Partner's tax status as a real estate
investment trust.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment
shall remain available and until full and final payment of all obligations
incurred under the Loan Documents, without the prior written consent of the
Majority Lenders (or the Administrative Agent or a greater Percentage of the
Lenders, if so expressly provided), it will not, and the General Partner will
not and, in the case of Sections 9.5 and 9.11, Borrower's Subsidiaries will
not:
9.1 Change in Business. Engage in any business activities or
operations other than (i) the ownership and operation of the Properties, or
(ii) other business functions and transactions related to the financing,
ownership, acquisition, development and/or management of bulk warehouse and
light industrial properties, or without obtaining the prior written consent of
the Supermajority Lenders materially change the nature of the use of the
Properties.
9.2 Change of Ownership of Properties. Change the ownership and
management of the Properties, except that any Affiliate of Borrower or the
General Partner shall be permitted to manage any of the Properties.
9.3 Change of Borrower Ownership or Financing Partnership
Ownership. Allow (i) the General Partner to own less than fifty-one percent
(51%) of the partnership interests in Borrower or 100% of the stock in FIMC and
in FISC, (ii) the Borrower to be controlled by a Person other than the General
Partner, (iii) any pledge of, other encumbrance on, or conversion to limited
partnership interests of, any of the general partnership interests in the
Borrower, or (iv) any pledge, hypothecation, encumbrance, transfer or other
change in the ownership or the partnership interests in the Financing
Partnership or Mortgage Partnership (except for the pledge of such partnership
interests to the REMIC Lender).
9.4 Use of Proceeds. Apply or permit to be applied any proceeds
of any Advance directly or indirectly, to the funding of any purchase of, or
offer for, any share of capital stock of any publicly held corporation unless
the board of directors of such corporation has
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consented to such offer prior to any public announcements relating thereto and
the Lenders have consented to such use of the proceeds of the Facility.
9.5 Transfers of Unencumbered Assets. Transfer or otherwise
dispose of (other than the creation or incurrence of Liens permitted under
Section 9.6) an Unencumbered Asset without the prior written consent of the
Majority Lenders if the Value of such Unencumbered Asset, together with the
Value of any other Unencumbered Assets which have been transferred or disposed
of during the same period, exceeds the following maximum amounts:
(i) for the period from the Agreement
Execution Date through the earlier of (A) the date that the
REMIC Loan becomes Defeased REMIC Debt and (B) a date six (6)
months after the Agreement Execution Date, a maximum of
$90,000,000; and
(ii) for a period beginning at the end of
the period described in clause (i) and ending on the last day
of the fourth full fiscal quarter of the Borrower thereafter
and for subsequent periods ending on the last day of each such
fiscal quarter thereafter and consisting of the immediately
preceding four (4) full fiscal quarters, a maximum of twenty
percent (20%) of the sum of the Value of Unencumbered Assets
at the beginning of such period plus the increase therein as a
result of all Projects added to Unencumbered Assets during
such period.
9.6 Liens. Create, incur, or suffer to exist (or permit any of
its Subsidiaries to create, incur, or suffer to exist) any Lien in, of or on
the Property of the Borrower or any of their Subsidiaries except:
(i) Liens for taxes, assessments or
governmental charges or levies on their Property if the same
shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall
have been set aside on their books;
(ii) Liens which arise by operation of
law, such as carriers', warehousemen's, landlords',
materialmen and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 30 days past due or which
are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on
its books;
(iii) Liens arising out of pledges or
deposits under worker's compensation laws, unemployment
insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
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(iv) Utility easements, building
restrictions, zoning restrictions, easements and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries;
(v) Liens of any Subsidiary in favor of
the Borrower; and
(vi) Liens arising in connection with any
Indebtedness permitted hereunder to the extent such Liens will
not result in a violation of any of the provisions of this
Agreement.
Liens permitted pursuant to this Section 9.6 shall be deemed to be "Permitted
Liens".
9.7 Regulation U. Use any of the proceeds of the Advances to
purchase or carry any Margin Stock.
9.8 [Intentionally Omitted]
9.9 [Intentionally Omitted]
9.10 Indebtedness and Cash Flow Covenants. Permit or suffer:
(a) as of November 30, 1996 or the last day of any fiscal
quarter ending thereafter, the ratio of EBITDA to the sum of (1) Interest
Expense plus (2) Senior Preferred Stock Expense for such fiscal quarter to be
less than 2.0 to 1.0, based on annualizing the results of such fiscal quarter;
(b) as of any day, Consolidated Total Indebtedness to
exceed 50% of Implied Capitalization Value;
(c) as of any day, the ratio of Value of Unencumbered
Assets to outstanding Consolidated Senior Unsecured Debt to be less than either
(i) 1.65 to 1.0 for any fiscal quarter not ending during a Rating Pricing
Period or (ii) 1.5 to 1.0 for any fiscal quarter ending during a Rating Pricing
Period;
(d) as of November 30, 1996 or the last day of any fiscal
quarter ending thereafter, the ratio obtained by dividing (a) Property
Operating Income from Unencumbered Assets qualifying for inclusion in the
calculation of Value of Unencumbered Assets for such quarter by (b) Debt
Service on all Consolidated Senior Unsecured Debt for such quarter to be less
than 1.75 to 1;
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(e) as of any day, the sum of (1) Consolidated Secured
Debt plus (2) Senior Preferred Stock to exceed 45% of Implied Capitalization
Value of Borrower and its Subsidiaries. Senior Preferred Stock will be dropped
from this ratio when the PS Guaranty is eliminated, as evidenced by the
Administrative Agent's receipt of satisfactory evidence thereof;
(f) as of November 30, 1996 or the last day of any fiscal
quarter ending thereafter, Market Value Net Worth of the Borrower to be less
than the sum of (i) $450,000,000 plus (ii) seventy-five percent (75%) of the
aggregate proceeds received (net of customary related fees and expenses) in
connection with any equity offering (including any issuance of shares in the
General Partner or units in the Borrower) after the Agreement Execution Date.
To the extent Borrower has Defeased REMIC Debt, both the underlying debt and
interest payable thereon and the financial assets used to defease such debt and
interest earned thereon shall be excluded from calculations of the foregoing
financial covenants.
9.11 Mergers and Dispositions. Enter into any merger,
consolidation, reorganization or liquidation or transfer or otherwise dispose
of all or a substantial portion of its properties, except for: such
transactions that occur between wholly-owned Subsidiaries; transactions where
Borrower is the surviving entity and there is no change in business conducted
or loss of an investment grade credit rating, and no Default or Event of
Default under the Loan Documents results from such transaction; or as otherwise
approved in advance by the Lenders. Borrower will notify the Administrative
Agent (who will promptly notify Lenders) of any acquisitions, dispositions,
mergers or asset purchases involving assets valued in excess of 5% of
Borrower's then-current Market Value Net Worth and certify compliance with
covenants after giving effect to such proposed acquisition, disposition,
merger, or asset purchase regardless of whether any consent is required.
9.12 Negative Pledge. Borrower agrees that throughout the term of
this Facility, no "negative pledge" on any Project then included in
Unencumbered Assets restricting Borrower's right to sell or encumber such
Project shall be given to any other lender or creditor or, if such a "negative
pledge" is given, the Project affected shall be immediately excluded from
Unencumbered Assets.
9.13 Maximum Revenue from Single Tenant. Permit the rent revenue
(exclusive of tenant reimbursements) received from a single tenant during any
quarter (as annualized), to exceed 7.5% of the Consolidated Operating
Partnership's total rent revenue (as annualized) as of the last day of such
quarter, except where Borrower's noncompliance arises from a merger of tenants
or other causes outside of Borrower's control.
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ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall
constitute an Event of Default:
10.1 Nonpayment of Principal. The Borrower fails to pay any
principal portion of the Obligations when due, whether on the Maturity Date or
otherwise.
10.2 Certain Covenants. The Borrower, General Partner and/or
Consolidated Operating Partnership, as the case may be, is not in compliance
with any one or more of Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.10, 9.11,
9.12 or 9.13 hereof.
10.3 Nonpayment of Interest and Other Obligations. The Borrower
fails to pay any interest or other portion of the Obligations, other than
payments of principal, and such failure continues for a period of five (5) days
after the date such payment is due.
10.4 Cross Default. Any monetary default occurs (after giving
effect to any applicable cure period) under any other Indebtedness (which
includes liability under Guaranties) of Borrower or the General Partner, singly
or in the aggregate, in excess of Seven Million Five Hundred Thousand Dollars
($7,500,000), other than (i) Indebtedness arising from the purchase of personal
property or the provision of services, the amount of which is being contested
by Borrower or (ii) Indebtedness (other than the REMIC Loan which is the
subject of Section 10.13 below) which is "non-recourse", i.e., which is not
recoverable by the creditor thereof from the general assets of the Borrower,
the General Partner or any of their Affiliates, but is limited to the proceeds
of certain real estate, improvements and related personal property.
10.5 Loan Documents. Any Loan Document is not in full force and
effect or a default has occurred and is continuing thereunder after giving
effect to any cure or grace period in any such document.
10.6 Representation or Warranty. At any time or times hereafter
any representation or warranty set forth in Articles VI or VII of this
Agreement or in any other Loan Document or in any statement, report or
certificate now or hereafter made by the Borrower or the General Partner to the
Lenders or the Administrative Agent is not true and correct in any material
respect.
10.7 Covenants, Agreements and Other Conditions. The Borrower or
the General Partner fails to perform or observe any of the other covenants,
agreements and conditions contained in Articles VIII and IX (except for
Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.10, 9.11, 9.12 or 9.13 hereof) and
elsewhere in this Agreement or any of the other Loan Documents in accordance
with the terms hereof or thereof, not specifically referred to
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herein, and such Default continues unremedied for a period of thirty (30) days
after written notice from Administrative Agent, provided, however, that if such
Default is susceptible of cure but cannot by the use of reasonable efforts be
cured within such thirty (30) day period, such Default shall not constitute an
Event of Default under this Section 10.7 so long as (i) the Borrower or the
General Partner, as the case may be, has commenced a cure within such
thirty-day period and (ii) thereafter, Borrower or General Partner, as the case
may be, is proceeding to cure such default continuously and diligently and in a
manner reasonably satisfactory to Lenders and (iii) such default is cured not
later than sixty (60) days after the expiration of such thirty (30) day period.
10.8 No Longer General Partner. The General Partner shall no
longer be the sole general partner of Borrower.
10.9 Material Adverse Financial Change. The Borrower or General
Partner has suffered a Material Adverse Financial Change or is Insolvent.
10.10 Bankruptcy.
(a) The General Partner, the Borrower or any Subsidiary
having more than $10,000,000 of Equity Value (as defined below) shall (i) have
an order for relief entered with respect to it under the Federal bankruptcy
laws as now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any substantial portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it as a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 10.10(a), (vi)
fail to contest in good faith any appointment or proceeding described in
Section 10.10(b) or (vii) not pay, or admit in writing its inability to pay,
its debts generally as they become due. As used herein, the term "Equity
Value" of a Subsidiary shall mean (1) Property Operating Income of such
Subsidiary's Properties owned as of the Agreement Execution Date capitalized at
a 10.5% rate, plus (2) the purchase price of any of such Subsidiary's
Properties acquired after the Agreement Execution Date less (3) any
Indebtedness of such Subsidiary;
(b) A receiver, trustee, examiner, liquidator or similar
official shall be appointed for the General Partner, Borrower or any Subsidiary
having more than $10,000,000 of Equity Value or any substantial portion of any
of their Properties, or a proceeding described in Section 10.10(a)(iv) shall be
instituted against the General Partner, the Borrower or any such Subsidiary and
such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty (60) consecutive days.
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10.11 Legal Proceedings. Borrower or General Partner is enjoined,
restrained or in any way prevented by any court order or judgment or if a
notice of lien, levy, or assessment is filed of record with respect to all or
any part of the Properties by any governmental department, office or agency,
which could materially adversely affect the performance of the obligations of
such parties hereunder or under the Loan Documents, as the case may be, or if
any proceeding is filed or commenced seeking to enjoin, restrain or in any way
prevent the foregoing parties from conducting all or a substantial part of
their respective business affairs and failure to vacate, stay, dismiss, set
aside or remedy the same within ninety (90) days after the occurrence thereof.
10.12 ERISA. Borrower or General Partner is deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code).
10.13 REMIC Loan. Any "Event of Default" (as such term is defined
in the REMIC Loan Agreement) that occurs under the REMIC Loan Agreement with
respect to the REMIC Loan.
10.14 Failure to Satisfy Judgments. The General Partner, the
Borrower or any of its Subsidiaries shall fail within sixty (60) days to pay,
bond or otherwise discharge any judgments or orders for the payment of money in
an amount which, when added to all other judgments or orders outstanding
against the General Partner, the Borrower or any Subsidiary would exceed
$10,000,000 in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith, unless the liability is insured against
and the insurer has not challenged coverage of such liability.
10.15 Environmental Remediation. Failure to remediate within the
time period required by law or governmental order, (or within a reasonable time
in light of the nature of the problem if no specific time period is so
established), environmental problems in violation of applicable law related to
Properties of Borrower and/or its Subsidiaries where the estimated cost of
remediation is in the aggregate in excess of $20,000,000, in each case after
all administrative hearings and appeals have been concluded.
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ARTICLE XI
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
11.1 Acceleration.
If any Event of Default described in Section 10.10 hereof
occurs, the obligation of the Lenders to make Advances and of the Issuing Bank
to issue Facility Letters of Credit hereunder shall automatically terminate and
the Obligations shall immediately become due and payable. If any other Event
of Default described in Article X hereof occurs, such obligation to make
Advances and to issue Facility Letters of Credit shall be terminated and at the
election of the Majority Lenders, the Obligations may be declared to be due and
payable.
In addition to the foregoing, following the occurrence of an
Event of Default and so long as any Facility Letter of Credit has not been
fully drawn and has not been cancelled or expired by its terms, upon demand by
the Majority Lenders the Borrower shall deposit in the Letter of Credit
Collateral Account cash in an amount equal to the aggregate undrawn face amount
of all outstanding Facility Letters of Credit and all fees and other amounts
due or which may become due with respect thereto. The Borrower shall have no
control over funds in the Letter of Credit Collateral Account, which funds
shall be invested by the Administrative Agent from time to time in its
discretion in certificates of deposit of First Chicago having a maturity not
exceeding thirty (30) days. Such funds shall be promptly applied by the
Administrative Agent to reimburse the Issuing Bank for drafts drawn from time
to time under the Facility Letters of Credit. Such funds, if any, remaining in
the Letter of Credit Collateral Account following the payment of all
Obligations in full shall, unless the Administrative Agent is otherwise
directed by a court of competent jurisdiction, be promptly paid over to the
Borrower.
11.2 Preservation of Rights; Amendments. No delay or omission of
the Lenders in exercising any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and the making of an Advance notwithstanding the existence of a Default or the
inability of the Borrower to satisfy the conditions precedent to such Advance
shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall
be valid unless in writing signed by the Administrative Agent and the number of
Lenders required hereunder and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Lenders until
the Obligations have been paid in full.
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ARTICLE XII
THE ADMINISTRATIVE AGENT
12.1 Appointment. First Chicago is hereby appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders
authorizes the Administrative Agent to act as the agent of such Lender. The
Administrative Agent agrees to act as such upon the express conditions
contained in this Article XII. The Administrative Agent shall not have a
fiduciary relationship in respect of any Lender by reason of this Agreement,
except to the extent the Administrative Agent acts as an agent with respect to
the receipt or payment of funds hereunder.
12.2 Powers. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent (in its
capacity as Administrative Agent) nor any of its directors, officers, agents or
employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct.
12.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent (in its capacity as Administrative Agent) nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of
any condition specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith.
12.5 Action on Instructions of Lenders. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Majority Lenders, Supermajority Lenders or all
Lenders, as the case may be, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders and on
all holders of Notes. The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the
Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
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12.6 Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents,
and attorneys-in-fact and shall not be answerable to the Lenders, except as to
money or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent
shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of outside counsel
selected by the Administrative Agent.
12.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
accordance with their respective Percentages (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other reasonable
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents, if not paid by Borrower, and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent (in
its capacity as Administrative Agent and not as a Lender) in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the
Administrative Agent.
12.9 Rights as a Lender. With respect to the Commitment, Advances
made by it and the Note issued to it, the Administrative Agent shall have the
same rights and powers hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent, in its individual capacity, may accept deposits from,
lend money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person.
12.10 Commitment as a Lender. First Chicago and UBS each agrees to
maintain at all times a Commitment of at least 10% of the Aggregate Commitment
so long as First
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Chicago remains as Administrative Agent; provided, that the foregoing
agreement of First Chicago and UBS shall not apply at any time following a
Monetary Default or Event of Default (irrespective of whether such Monetary
Default or Event of Default subsequently is waived).
12.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative 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 and the other Loan Documents.
12.12 Successor Administrative Agent. Each Lender agrees that First
Chicago shall serve as Administrative Agent at all times during the term of
this Facility, except that First Chicago may resign as Administrative Agent in
the event (x) First Chicago and Borrower shall mutually agree in writing or (y)
an Event of Default shall occur under the Loan Documents (irrespective of
whether such Event of Default subsequently is waived), or (z) First Chicago
shall determine, in its sole reasonable discretion, that because of its other
banking relationships with Borrower and/or Borrower's Affiliates at the time of
such decision First Chicago's resignation as Administrative Agent would be
necessary in order to avoid creating an appearance of impropriety on the part
of First Chicago. First Chicago (or any successor Administrative Agent) may be
removed as Administrative Agent by written notice received by Administrative
Agent from all of the other Lenders (i) at any time with cause (i.e., a breach
by First Chicago (or any successor Administrative Agent) of its duties as
Administrative Agent hereunder), or (ii) without cause if First Chicago (or any
successor Administrative Agent) assigns a portion of First Chicago's (or such
successor Administrative Agent's) then applicable Commitment in an amount such
that following such assignment First Chicago's (or such successor Administrative
Agent's) then remaining Commitment is less than the then applicable Commitment
of any other Lender hereunder. Upon any such resignation or removal, UBS shall
be the successor Administrative Agent (unless objected to by the Majority
Lenders) or, if UBS declines or is so objected to, the Majority Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may appoint, on
behalf of the Borrower and the Lenders, a successor Administrative Agent. Such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent (including the right to
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receive any fees for performing such duties which accrue thereafter), and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XII shall continue in effect for its benefit and that
of the other Lenders in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder and under the other
Loan Documents.
12.13 Notice of Defaults. If a Lender becomes aware of a Default or
Event of Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Event of Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
12.14 Requests for Approval. If the Administrative Agent requests
in writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative
Agent within ten Business Days (or sooner if such notice specifies a shorter
period, but in no event less than five Business Days for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request from
the Administrative Agent. If the Lender does not so respond, that Lender shall
be deemed to have approved the request. Upon request, the Administrative Agent
shall notify the Lenders which Lenders, if any, failed to respond to a request
for approval.
12.15 Copies of Documents. Administrative Agent shall promptly
deliver to each of the Lenders copies of all notices of default and other
formal notices sent or received and according to Section 15.1 of this
Agreement. Administrative Agent shall deliver to Lenders within 15 Business
Days following receipt, copies of all financial statements, certificates and
notices received regarding the General Partner's ratings except to the extent
such items are required to be furnished directly to the Lenders by Borrower
hereunder. Within fifteen Business Days after a request by a Lender to the
Administrative Agent for other documents furnished to the Administrative Agent
by the Borrower, the Administrative Agent shall provide copies of such documents
to such Lender except where this Agreement obligates Administrative Agent to
provide copies in a shorter period of time.
12.16 Defaulting Lenders. At such time as a Lender becomes a
Defaulting Lender, such Defaulting Lender's right to vote on matters which are
subject to the consent or approval of the Majority or Supermajority Lenders,
such Defaulting Lender or all Lenders shall be immediately suspended until such
time as the Lender is no longer a Defaulting Lender. If a Defaulting Lender
has failed to fund its Percentage of any Advance and until such time as such
Defaulting Lender subsequently funds its Percentage of such Advance, all
Obligations owing to such Defaulting Lender hereunder shall be subordinated in
right of payment, as provided in the following sentence, to the prior payment
in full of all principal of, interest on and fees relating to the Loans funded
by the other Lenders in connection with any such Advance in which the
Defaulting Lender has not funded its Percentage (such
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principal, interest and fees being referred to as "Senior Loans" for the
purposes of this section). All amounts paid by the Borrower and otherwise due to
be applied to the Obligations owing to such Defaulting Lender pursuant to the
terms hereof shall be distributed by the Administrative Agent to the other
Lenders in accordance with their respective Percentages (recalculated for the
purposes hereof to exclude the Defaulting Lender) until all Senior Loans
have been paid in full. At that point, the "Defaulting Lender" shall no longer
be deemed a Defaulting Lender. After the Senior Loans have been paid in full
equitable adjustments will be made in connection with future payments by the
Borrower to the extent a portion of the Senior Loans had been repaid with
amounts that otherwise would have been distributed to a Defaulting Lender but
for the operation of this Section 12.16. This provision governs only the
relationship among the Administrative Agent, each Defaulting Lender and the
other Lenders; nothing hereunder shall limit the obligation of the Borrower to
repay all Loans in accordance with the terms of this Agreement. The provisions
of this Section 12.16 shall apply and be effective regardless of whether a
Default occurs and is continuing, and notwithstanding (i) any other provision of
this Agreement to the contrary, (ii) any instruction of the Borrower as to its
desired application of payments or (iii) the suspension of such Defaulting
Lender's right to vote on matters as provided above.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of Borrower and the Lenders and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights or obligations under the Loan Documents without the
consent of all the Lenders and any assignment by any Lender must be made in
compliance with Section 13.3. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 in the case of an assignment thereof or, in
the case of any other transfer, a written notice of the transfer is filed with
the Administrative Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
13.2 Participations.
13.2.1 Permitted Participants; Effect. Any Lender may, in
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities ("
Participants") participating interests in any Advance
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owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of
any such Note for all purposes under the Loan Documents, all amounts
payable by Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and Borrower and the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
13.2.2 Voting Rights. Each Lender shall retain the sole
right to vote its Percentage of the Aggregate Commitment, without the
consent of any Participant, for the approval or disapproval of any
amendment, modification or waiver of any provision of the Loan
Documents, provided that such Lender may grant such Participant the
right to approve any amendment, modification or waiver which forgives
principal, interest or fees or reduces the interest rate or fees
payable hereunder, postpones any date fixed for any
regularly-scheduled payment of principal of or interest on the
Obligations, releases Collateral beyond any releases expressly
provided for herein or extends the Maturity Date.
13.3 Assignments.
13.3.1 Permitted Assignments. Subject to the provisions of
Section 12.10 above with respect to First Chicago and UBS, any Lender
may, with the prior written consent of Administrative Agent (plus,
during the initial syndication, UBS) and Borrower (which consents
shall not be unreasonably withheld or delayed), in accordance with
applicable law, at any time assign to one or more banks or other
entities (collectively, "Purchasers") all or any part of its
rights and obligations under the Loan Documents, except that no
consent of Borrower shall be required if an Event of Default has
occurred and is continuing and that no consent of Administrative
Agent, UBS or Borrower shall ever be required for (i) any assignment
to a Person directly or indirectly controlling, controlled by or under
direct or indirect common control with the assigning Lender or (ii)
the pledge or assignment by a Lender of such Lender's Note and other
rights under the Loan Documents to any Federal Reserve Bank in
accordance with applicable law. Such assignments and assumptions
shall be substantially in the form of Exhibit J hereto. The Borrower
shall execute any and all documents which are customarily required by
such Lender (including, without limitation, a replacement
promissory note or notes in the forms provided hereunder) in
connection with any such assignment, but Borrower shall not be
obligated to pay any fees and expenses incurred by any Lender in
connection with any assignment pursuant to this Section. Any Lender
selling all or any part of its rights and obligation hereunder in a
transaction requiring the consent of the Administrative
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Agent shall pay to the Administrative Agent a fee of $3,500.00
per assignee to reimburse Administrative Agent for its involvement in
such assignment.
13.3.2 Effect; Effective Date of Assignment. Upon delivery
to the Administrative Agent of a notice of assignment executed by the
assigning Lender and the Purchaser, such assignment shall become
effective on the effective date specified in such notice of
assignment. The notice of assignment shall contain a representation
by the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment and the Loan under the applicable
assignment agreement are "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or
action by Borrower, the Lenders or the Administrative Agent shall be
required to release the transferor Lender with respect to the
percentage of the Commitment and Advances assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to
this Section 13.3.2, the transferor Lender, the Administrative Agent
and Borrower shall make appropriate arrangements so that replacement
Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each
case in principal amounts reflecting their respective Commitments, as
adjusted pursuant to such assignment.
13.4 Dissemination of Information. Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and General Partner. Each
Transferee shall agree in writing to keep confidential any such information
which is not publicly available.
13.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with all applicable provisions of the Code with respect to
withholding and other tax matters.
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ARTICLE XIV
GENERAL PROVISIONS
14.1 Survival of Representations. All representations and
warranties contained in this Agreement shall survive delivery of the Notes and
the making of the Advances herein contemplated.
14.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
14.3 Taxes. Any recording and other taxes (excluding franchise,
income or similar taxes) or other similar assessments or charges payable or
ruled payable by any governmental authority incurred in connection with the
consummation of the transactions contemplated by this Agreement shall be paid
by the Borrower, together with interest and penalties, if any.
14.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
14.5 No Third Party Beneficiaries. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
14.6 Expenses; Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all out-of-pocket costs and expenses incurred
by the Administrative Agent and the Arrangers (including the reasonable fees,
out-of-pocket expenses and other reasonable expenses of counsel, which counsel
may be employees of Administrative Agent) in connection with the preparation,
execution and delivery of this Agreement, the Notes, the Loan Documents and any
other agreements or documents referred to herein or therein and any amendments
thereto, (b) all out-of-pocket costs and expenses incurred by the Administrative
Agent and the Lenders (including the reasonable fees, out-of-pocket expenses
and other reasonable expenses of counsel to the Administrative Agent and the
Lenders, which counsel may be employees of Administrative Agent or the Lenders)
in connection with the enforcement and protection of the rights of the Lenders
under this Agreement, the Notes, the Loan Documents or any other agreement or
document referred to herein or therein, and (c) all reasonable and customary
costs and expenses of periodic audits by the Administrative Agent's personnel of
the Borrower's books and records provided that prior to an Event of Default,
Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, their directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and reasonable expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not the Lenders is a party
thereto) which any of them may pay or incur arising out of or
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relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Advance hereunder, except that the
foregoing indemnity shall not apply to a Lender to the extent that any losses,
claims, etc. are the result of such Lender's gross negligence or wilful
misconduct. The obligations of the Borrower under this Section shall survive
the termination of this Agreement.
14.7 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
14.8 Nonliability of the Lenders. The relationship between the
Borrower and the Lenders shall be solely that of borrower and lender. The
Lenders shall not have any fiduciary responsibilities to the Borrower. The
Lenders undertake no responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
14.9 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
14.10 Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF THE LENDERS
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A
COURT IN CHICAGO, ILLINOIS.
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14.11 Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
14.12 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents. Any assignee or transferee of the Notes agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of the Notes, shall
be conclusive and binding on any subsequent holder, transferee or assignee of
such Notes or of any note or notes issued in exchange therefor.
14.13 Entire Agreement; Modification of Agreement. The Loan
Documents embody the entire agreement among the Borrower, General Partner,
Administrative Agent, and Lenders and supersede all prior conversations,
agreements, understandings, commitments and term sheets among any or all of
such parties with respect to the subject matter hereof. Any provisions of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower, and Administrative Agent if the
rights or duties of Administrative Agent are affected thereby, and
(a) each of the Lenders if such amendment or waiver
(i) reduces or forgives any payment of
principal or interest on the Obligations or any fees payable
by Borrower to such Lender hereunder; or
(ii) postpones the date fixed for any
payment of principal of or interest on the Obligations or any
fees payable by Borrower to such Lender hereunder; or
(iii) changes the amount of such Lender's
Commitment (other than pursuant to an assignment permitted
under Section 13.3) or the unpaid principal amount of such
Lender's Note; or
(iv) extends the Maturity Date; or
(v) releases or limits the liability of
the General Partner under the Loan Documents; or
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(vi) changes the definition of Majority
Lenders or Supermajority Lenders or modifies any requirement
for consent by each of the Lenders; or
(vii) modifies or waives any covenant
contained in Sections 8.13, 9.3, 9.5, 9.6, 9.10 or 9.12 hereof;
or
(b) the Majority Lenders, to the extent expressly provided
for herein; or
(c) the Supermajority Lenders, to the extent expressly
provided for herein and in the case of all other waivers or amendments if no
percentage of Lenders is specified herein.
14.14 Dealings with the Borrower. The Lenders and their affiliates
may accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with the Borrower or the General Partner or
any of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15 Set-Off.
(a) If an Event of Default shall have occurred, each
Lender shall have the right, at any time and from time to time without notice
to the Borrower, any such notice being hereby expressly waived, to set-off and
to appropriate or apply any and all deposits of money or property or any other
indebtedness at any time held or owing by such Lender to or for the credit or
the account of the Borrower against and on account of all outstanding
Obligations and all Obligations which from time to time may become due
hereunder and all other obligations and liabilities of the Borrower under this
Agreement, irrespective of whether or not such Lender shall have made any
demand hereunder and whether or not said obligations and liabilities shall have
matured.
(b) Each Lender agrees that if it shall, by exercising
any right of set-off or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal, interest or fees due with
respect to any Note held by it which is greater than the proportion received by
any other Lender in respect of the aggregate amount of principal, interest or
fees due with respect to any Note held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Lenders and such other
adjustments shall be made as may be required so that all such payments of
principal, interest or Fees with respect to the Notes held by the Lenders shall
be shared by the Lenders pro rata according to their respective Commitments.
14.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement
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shall be effective when it has been executed by the Borrower and each of the
Lenders shown on the signature pages hereof.
ARTICLE XV
NOTICES
15.1 Giving Notice. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below or at such other address as may be designated by
such party in a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid, shall be deemed given when received;
any notice, if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes). Notice may be given
as follows:
To the Borrower:
First Industrial, L.P.
c/o First Industrial Realty Trust, Inc.
150 North Wacker Drive
Suite 150
Chicago, Illinois 60606
Attention: Mr. Scott Musil
Telecopy: (312) 704-6606
To General Partner:
First Industrial Realty Trust, Inc.
150 North Wacker Drive
Suite 150
Chicago, Illinois 60606
Attention: Mr. Michael Havala
Telecopy: (312) 704-6606
Each of the above with a copy to:
Barack Ferrazzano Kirschbaum & Perlman
333 W. Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attention: Howard A. Nagelberg, Esq.
Telecopy: (312) 984-3150
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To each Lender:
As shown below the Lenders' signatures.
To the Administrative Agent:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telecopy: (312) 732-1117
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
To the Documentation Agent:
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171-0026
Attention: Kenneth A. McIntyre, Jr.
Telecopy: (212) 821-3969
15.2 Change of Address. Each party may change the address for
service of notice upon it by a notice in writing to the other parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BORROWER: FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its General Partner
By: Gary H. Heigl
------------------------------------
Title: Senior V.P.
---------------------------------
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GENERAL PARTNER: FIRST INDUSTRIAL REALTY TRUST, INC.
By: Gary H. Heigl
------------------------------------
Title: Senior V.P.
---------------------------------
LENDERS: THE FIRST NATIONAL BANK OF CHICAGO
By: [SIG]
------------------------------------
Title: Vice President
---------------------------------
Commitment: $100,000,000 Percentage
of Aggregate Commitment: 50%
Address for Notices:
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telephone: 312/732-2107
Telecopy: 312/732-1117
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By: [SIG]
------------------------------------
Title: Assistant Vice President
---------------------------------
By: [SIG]
------------------------------------
Title: Vice President
---------------------------------
Commitment: $100,000,000 Percentage
of Aggregate Commitment: 50%
Address for Notices:
299 Park Avenue
New York, New York 10071
Attention: Joseph Mitaretondo
-----------------------------
Telephone: 821-6589
-----------------------------
Telecopy: 821-4138
------------------------------
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ADMINISTRATIVE AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By: [SIG]
------------------------------------
Title: Vice President
---------------------------------
Address for Notices:
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telephone: 312/732-2107
Telecopy: 312/732-1117
DOCUMENTATION AGENT: UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By: [SIG]
------------------------------------
Title: Assistant Vice President
---------------------------------
By: [SIG]
------------------------------------
Title: Vice President
---------------------------------
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EXHIBIT A
PERCENTAGES
First Chicago -- 50%
UBS -- 50%
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EXHIBIT B-1
FORM OF NOTE
$_______________________ _______________, 1996
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of December __, 1996 (the "Agreement")
between FIRST INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"),
First Industrial Realty Trust, Inc., a Maryland corporation, Union Bank of
Switzerland, New York Branch, individually and as Documentation Agent, The
First National Bank of Chicago, a national bank organized under the laws of the
United States of America, individually and as Administrative Agent for the
Lenders (as such terms are defined in the Agreement), and the other Lenders
listed on the signature pages of the Agreement, Borrower promises to pay to the
order of _________________________ (the "Lender"), or its successors and
assigns, the principal sum of _________________________ AND NO/100 DOLLARS
($_________________________) or the aggregate unpaid principal amount of all
Loans (other than Competitive Bid Loans) made by the Lender to the Borrower
pursuant to Section 2.1 of the Agreement, in immediately available funds at the
office of the Administrative Agent in Chicago, Illinois, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth
in the Agreement. The Borrower shall pay this Promissory Note ("Note") in full
on or before the Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under
which this Note may be prepaid or its maturity date accelerated. Capitalized
terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
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If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By:_____________________________________
Its:_________________________________
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PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
_______________, 1996
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Unsecured Revolving Credit
Agreement dated as of December __, 1996 (the "Agreement") between FIRST
INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"), First Industrial
Realty Trust, Inc., a Maryland corporation, Union Bank of Switzerland, New York
Branch, The First National Bank of Chicago, a national bank organized under the
laws of the United States of America, individually and as Administrative Agent
for the Lenders (as such terms are defined in the Agreement), Borrower promises
to pay to the order of _________________________ (the "Lender"), or its
successors and assigns, the unpaid principal amount of such Competitive Bid
Loan made by the Lender to the Borrower pursuant to Section 2.17 of the
Agreement, in immediately available funds at the office of the Administrative
Agent in Chicago, Illinois, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay any remaining unpaid principal amount of such Competitive
Bid Loans under this Competitive Bid Note ("Note") in full on or before the
Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under
which this Note may be prepaid or its maturity date accelerated. Capitalized
terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly
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provided for in the Agreement), and any and all lack of diligence or delays in
collection or enforcement of this Note, and expressly agree that this Note, or
any payment hereunder, may be extended from time to time, and expressly
consent to the release of any party liable for the obligation secured by this
Note, the release of any of the security of this Note, the acceptance of any
other security therefor, or any other indulgence or forbearance whatsoever, all
without notice to any party and without affecting the liability of the Borrower
and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By:________________________________
Its:_______________________________
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PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT C-1
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.17(b))
To: The First National Bank of Chicago,
as administrative agent (the "Agent")
From: First Industrial, L.P. (the "Borrower")
Re: Unsecured Revolving Credit Agreement dated as of December _____,
1996 among the Borrower, First Industrial Realty Trust, Inc.,
the lenders from time to time party thereto, Union Bank of
Switzerland and The First National Bank of Chicago, as Agent for
such lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them
in the Agreement.
2. We hereby give notice pursuant to Section 2.17(b) of the
Agreement that we request Competitive Bid Quotes for the following proposed
Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount(1) Interest Period(2)
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR
Margin] [an Absolute Rate].
__________________________________
(1) Amount must be at least $10,000,000 and an integral multiple of
$1,000,000.
(2) One, two, three or six months (Competitive LIBOR Margin) or up to 180
days (Absolute Rate), subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.
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4. Upon acceptance by the undersigned of any or all of the
Competitive Bid Loans offered by Lenders in response to this request, the
undersigned shall be deemed to affirm as of the Borrowing Date thereof the
representations and warranties made in Article VI of the Agreement.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By:_____________________________________
Its:_________________________________
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EXHIBIT C-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.17(c))
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
First Industrial, L.P. (the "Borrower")
Pursuant to Section 2.17(c) of the Unsecured Revolving Credit Agreement
dated as of December _____, 1996 among the Borrower, First Industrial Realty
Trust, Inc., the lenders from time to time party thereto, Union Bank of
Switzerland and The First National Bank of Chicago, as Administrative Agent for
such lenders (as amended, supplemented or otherwise modified from time to time
through the date hereof, the "Agreement"), we are pleased on behalf of the
Borrower to invite you to submit Competitive Bid Quotes to the Borrower for the
following proposed Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with Section
2.17(d) of the Agreement and the foregoing. Capitalized terms used herein have
the meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago
time) on _______________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By:_____________________________________
Its:_________________________________
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EXHIBIT C-3
COMPETITIVE BID QUOTE
(Section 2.17(d))
_______________, 19___
To: The First National Bank of Chicago,
as Administrative Agent
Re: Competitive Bid Quote to First Industrial, L.P.
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______________, 19___, we hereby make the following Competitive Bid Quote
pursuant to Section 2.17(d) of the Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:_________________________________________________________
2. Person to contact at Quoting Lender:____________________________________
3. Borrowing Date:_______________________________________________________(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
__________________________________
(1) As specified in the related Invitation For Competitive Bid Quotes.
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[Competitive
Principal Interest LIBOR [Absolute Minimum
Amount(2) Period(3) Margin(4)] Rate(5)] Amount(6)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Unsecured
Revolving Credit Agreement dated as of December _____, 1996, among the
Borrower, First Industrial Realty Trust, Inc., the lenders from time to time
party thereto, Union Bank of Switzerland and The First National Bank of
Chicago, as Administrative Agent for such lenders (as amended, supplemented or
otherwise modified from time to time through the date hereof, the "Agreement"),
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part. Capitalized terms used herein and
not otherwise defined herein shall have their meanings as defined in the
Agreement.
Very truly yours,
[NAME OF LENDER]
By:_____________________________________
Title:__________________________________
_____________________
2 Principal amount bid for each Interest Period may not exceed the
principal amount requested. Buds must be made for at least $10,000,000 and
integral multiples of $1,000,000.
3 One, two, three or six months or up to 180 days, as specified in the
related Invitation For Competitive Bid Quotes.
4 Competitive LIBOR Margin for the applicable LIBOR Interest Period.
Specify percentage (rounded to the nearest 1/100 of 1%) and specify whether
"PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
6 Specify minimum amount, if any, which the Borrower may accept (see
Section 2.17(d)(ii)(d)).
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EXHIBIT D
FORM OF GUARANTY
This Guaranty made as of December __, 1996, by First Industrial Realty
Trust, Inc., a Maryland corporation ("Guarantor"), to and for the benefit of
Union Bank of Switzerland, New York Branch, The First National Bank of Chicago,
a national banking association, individually ("First Chicago"), and as
administrative agent for itself and the lenders listed on the signature pages
of the Revolving Credit Agreement (as defined below) and their respective
successors and assigns (collectively, "Lender").
RECITALS
A. First Industrial, L.P., a Delaware limited partnership
("Borrower"), and Guarantor have requested that Lender make an unsecured
revolving credit facility available to Borrower in the aggregate principal
amount of up to $200,000,000 ("Facility").
B. Lender has agreed to make available the Facility to Borrower
pursuant to the terms and conditions set forth in an Unsecured Revolving Credit
Agreement bearing even date herewith between Borrower, the Lenders and
Guarantor ("Revolving Credit Agreement"). All capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to such terms in the
Revolving Credit Agreement.
C. Borrower has executed and delivered to Lender one or more
Promissory Notes each of even date in the aggregate principal amount of
$200,000,000 as evidence of its indebtedness to Lender with respect to the
Facility (the promissory notes described above, together with any amendments or
allonges thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Revolving Credit Agreement, are
collectively referred to herein as the "Note"). Borrower has also executed and
delivered to each Lender a note ("Competitive Loan Note") which evidences any
Competitive Bid Loans which may be made by such Lender under the Revolving
Credit Agreement.
D. Guarantor is the sole general partner of Borrower and,
therefore, Guarantor will derive financial benefit from the Facility evidenced
by the Note, Revolving Credit Agreement and the other Loan Documents. The
execution and delivery of this Guaranty by Guarantor is a condition precedent to
the performance by Lender of its obligations under the Revolving Credit
Agreement.
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AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as
follows:
1. Guarantor absolutely, unconditionally, and irrevocably
guarantees to Lender:
(a) the full and prompt payment of the principal of and
interest on the Note and/or any Competitive Bid Loan Note when due,
whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, and the prompt payment of all sums which may now be or
may hereafter become due and owing under the Note, any Competitive Bid
Loan Note, the Revolving Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter
defined in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance,
performance, and satisfaction of all of the obligations, duties,
covenants, and agreements of Borrower under the Revolving Credit
Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by Lender or the holder of the Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, any
Competitive Bid Loan Note, the Revolving Credit Agreement and the other Loan
Documents, and to pay any reasonable expenses incurred by Lender in protecting,
preserving, or defending its interest in the Property or in connection with the
Facility or under any of the Loan Documents, including, without limitation, all
reasonable attorneys' fees and costs. Lender shall have the right, at its
option, either before, during or after pursuing any other right or remedy
against Borrower or Guarantor, to perform any and all of the Obligations by
or through any agent, contractor or subcontractor, or any of their agents, of
its selection, all as Lender in its sole discretion deems proper, and Guarantor
shall indemnify and hold Lender free and harmless from and against any and all
loss, damage, cost, expense, injury, or liability Lender may suffer or incur in
connection with the exercise of its rights under this Guaranty or the
performance of the Obligations, except to the extent the same arises as a result
of the gross negligence or wilful misconduct of Lender.
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All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Lender, and the choice
by Lender of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of business judgment, which the passage of time
and events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the
intention of the parties that such choice by Lender be given conclusive effect
regardless of such subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this
Guaranty by Lender and any and all notices and demands of every kind which may
be required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Lender or the holder of the Note or the
holder of any Competitive Bid Loan Note (other than defenses relating to
payment of the Facility Indebtedness or the correctness of any allegation by
Lender that Borrower was in default in the performance of the Obligations),
(iii) presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection and any and all formalities which otherwise might be legally required
to charge Guarantor with liability, (iv) any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Revolving Credit Agreement, it
being understood and agreed that Lender has no duty so to inform and that the
Guarantor is fully responsible for being and remaining informed by the Borrower
of all circumstances bearing on the existence or creation, or the risk of
nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of the
Borrower or any other action by any court or governmental body with respect
thereto, or to cause Lender to proceed against any other security given to
Lender in connection with the Facility Indebtedness or the Obligations. Credit
may be granted or continued from time to time by Lender to Borrower without
notice to or authorization from Guarantor, regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation.
Lender shall have no obligation to disclose or discuss with Guarantor its
assessment of the financial condition of Borrower. Guarantor acknowledges that
no representations of any kind whatsoever have been made by Lender to
Guarantor. No modification or waiver of any of the provisions of this Guaranty
shall be binding upon Lender except as expressly set forth in a writing duly
signed and delivered on behalf of Lender. Guarantor further agrees that any
exculpatory language contained in the Revolving Credit Agreement, the Note and
any Competitive Bid Loan Note shall in no event
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apply to this Guaranty, and will not prevent Lender from proceeding against
Guarantor to enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor
shall in nowise be impaired by any renewals or extensions which may be made
from time to time, with or without the knowledge or consent of Guarantor of the
time for payment of interest or principal under the Note or any Competitive Bid
Loan Note or by any forbearance or delay in collecting interest or principal
under the Note or any Competitive Bid Loan Note, or by any waiver by Lender
under the Revolving Credit Agreement or any other Loan Documents, or by
Lender's failure or election not to pursue any other remedies it may have
against Borrower, or by any change or modification in the Note, Revolving Credit
Agreement, any Competitive Bid Loan Note or any other Loan Documents, or by the
acceptance by Lender of any additional security or any increase, substitution or
change therein, or by the release by Lender of any security or any withdrawal
thereof or decrease therein, or by the application of payments received from any
source to the payment of any obligation other than the Facility Indebtedness,
even though Lender might lawfully have elected to apply such payments to any
part or all of the Facility Indebtedness, it being the intent hereof that
Guarantor shall remain liable as principal for payment of the Facility
Indebtedness and performance of the Obligations until all indebtedness has been
paid in full and the other terms, covenants and conditions of the Revolving
Credit Agreement and other Loan Documents and this Guaranty have been
performed, notwithstanding any act or thing which might otherwise operate as a
legal or equitable discharge of a surety. Guarantor further understands and
agrees that Lender may at any time enter into agreements with Borrower to amend
and modify the Note, Revolving Credit Agreement, any Competitive Bid Loan Note
or other Loan Documents, or any thereof, and may waive or release any provision
or provisions of the Note, the Revolving Credit Agreement, any Competitive Bid
Loan Note and other Loan Documents or any thereof, and, with reference to such
instruments, may make and enter into any such agreement or agreements as Lender
and Borrower may deem proper and desirable, without in any manner impairing this
Guaranty or any of Lender's rights hereunder or any of the Guarantor's
obligations hereunder.
5. This is an absolute, unconditional, complete, present and
continuing guaranty of payment and performance and not of collection.
Guarantor agrees that this Guaranty may be enforced by Lender without the
necessity at any time of resorting to or exhausting any other security or
collateral given in connection herewith or with the Note, any Competitive Bid
Loan Note, the Revolving Credit Agreement, or any of the other Loan Documents,
or resorting to any other guaranties, and Guarantor hereby waives the right to
require Lender to join Borrower in any action brought hereunder or to commence
any action against or obtain any judgment against Borrower or to pursue any
other remedy or enforce any other right. Guarantor further agrees that nothing
contained herein or otherwise shall prevent Lender from pursuing concurrently
or successively all rights and remedies available to it at law and/or in equity
or under the Note, Revolving Credit Agreement, any Competitive Bid Loan Note or
any other Loan Documents, and the exercise of any of its rights or the
completion of any of its remedies shall not constitute a discharge of any of
Guarantor's obligations
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hereunder, it being the purpose and intent of the Guarantor that the obligations
of such Guarantor hereunder shall be primary, absolute, independent and
unconditional under any and all circumstances whatsoever. Neither Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or limitation of the liability of
Borrower under the Note, Revolving Credit Agreement, any Competitive Bid Loan
Note or other Loan Documents or by reason of Borrower's bankruptcy or by reason
of any creditor or bankruptcy proceeding instituted by or against Borrower.
This Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to the Note, Revolving Credit Agreement,
any Competitive Bid Loan Note or any other Loan Document is rescinded or
otherwise required to be returned by the payee upon the insolvency, bankruptcy,
or reorganization of the payor, all as though such payment to Lender had not
been made, regardless of whether Lender contested the order requiring the return
of such payment. The obligations of Guarantor pursuant to the preceding
sentence shall survive any termination, cancellation, or release of this
Guaranty.
6. This Guaranty shall be assignable by Lender to any assignee of
all or a portion of Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, the Note, any Competitive Bid Loan Note,
or any other Loan Document is placed in the hands of an attorney for collection
or is collected through any legal proceeding; (ii) an attorney is retained to
represent Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any Loan Document; (iii) an attorney is retained to provide
advice or other representation with respect to the Loan Documents in connection
with an enforcement action or potential enforcement action; or (iv) an attorney
is retained to represent Lender in any other legal proceedings whatsoever in
connection with this Guaranty, the Note, any Competitive Bid Loan Note, the
Revolving Credit Agreement, any of the Loan Documents, or any property subject
thereto (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent (as defined in the Revolving
Credit Agreement) alleging a breach by the Administrative Agent of its duties
under the Loan Documents), then Guarantor shall pay to Lender upon demand all
reasonable attorney's fees, costs and expenses, including, without limitation,
court costs, filing fees, recording costs, expenses of foreclosure, title
insurance premiums, survey costs, minutes of foreclosure, and all other costs
and expenses incurred in connection therewith (all of which are referred to
herein as "Enforcement Costs"), in addition to all other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare
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such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Guaranty shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein, and that the rights, obligations and
interest of Lender or the holder of the Note or any Competitive Bid Loan Note
under the remainder of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter
existing is hereby subordinated to the Facility Indebtedness. Guarantor agrees
that until the entire Facility Indebtedness has been paid in full, (i)
Guarantor will not seek, accept, or retain for Guarantor's own account, any
payment from Borrower on account of such subordinated debt, and (ii) any such
payments to Guarantor on account of such subordinated debt shall be collected
and received by Guarantor in trust for Lender and shall be paid over to Lender
on account of the Facility Indebtedness without impairing or releasing the
obligations of Guarantor hereunder.
10. Guarantor waives and releases any claim (within the meaning of
11 U.S.C. Section 101) which Guarantor may have against Borrower arising from
a payment made by Guarantor under this Guaranty and agrees not to assert or
take advantage of any subrogation rights of Guarantor or Lender or any right of
Guarantor or Lender to proceed against (i) Borrower for reimbursement, or (ii)
any other guarantor or any collateral security or guaranty or right of offset
held by Lender for the payment of the Facility Indebtedness and performance of
the Obligations, nor shall Guarantor seek or be entitled to seek any
contribution or reimbursement from Borrower or any other guarantor in respect of
payments made by Guarantor hereunder. It is expressly understood that the
waivers and agreements of Guarantor set forth above constitute additional and
cumulative benefits given to Lender for its security and as an inducement for
its extension of credit to Borrower. Nothing contained in this Paragraph 10 is
intended to prohibit Guarantor from making all distributions to its constituent
shareholders which are required by law from time to time in order for Guarantor
to maintain its status as a real estate investment trust in compliance with all
applicable provisions of the Code (as defined in the Revolving Credit
Agreement).
11. Any amounts received by Lender from any source on account of any
indebtedness may be applied by Lender toward the payment of such indebtedness,
and in such order of application, as Lender may from time to time elect.
12. The Guarantor hereby submits to personal jurisdiction in the
State of Illinois for the enforcement of this Guaranty and waives any and all
personal rights to object to such jurisdiction for the purposes of litigation
to enforce this Guaranty. Guarantor hereby consents to the jurisdiction of
either the Circuit Court of Cook County, Illinois, or the United States
District Court for the Northern District of Illinois, in any action, suit, or
proceeding which Lender may at any time wish to file in connection with this
Guaranty or any related
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matter. Guarantor hereby agrees that an action, suit, or proceeding to enforce
this Guaranty may be brought in any state or federal court in the State of
Illinois and hereby waives any objection which Guarantor may have to the laying
of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude Lender from filing any such action, suit, or proceeding in any other
appropriate forum.
13. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or
by telex or by facsimile and addressed or delivered to such party at its
address set forth below or at such other address as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes). Notice may be given as follows:
To the Guarantor:
First Industrial Realty Trust, Inc.
150 N. Wacker Drive
Chicago, Illinois 60611
Attention: Mr. Michael Havala
Telecopy: (312) 704-6606
With a copy to:
Barack Ferrazzano Kirschbaum & Perlman
333 W. Wacker Drive, Suite 2700
Chicago, Illinois 60606
Attention: Howard A. Nagelberg, Esq.
Telecopy: 312-984-3150
To the Lender:
c/o The First National Bank of Chicago, as agent
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Department
Telecopy: (312) 732-1117
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With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a
place for the service of notice.
14. This Guaranty shall be binding upon the heirs, executors, legal
and personal representatives, successors and assigns of Guarantor and shall
inure to the benefit of Lender's successors and assigns.
15. This Guaranty shall be construed and enforced under the internal
laws of the State of Illinois.
16. GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING
THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS
GUARANTY AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation
By:____________________________________
Its_________________________________
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STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that _____________________, _____
___________ of First Industrial Realty Trust, Inc., personally known to me to
be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that he signed and
delivered the said instrument as his own free and voluntary act and as the free
and voluntary act of said corporation, for the uses and purposes therein set
forth.
GIVEN under my hand and Notarial Seal, this _____ day of December, 1996.
______________________________________
Notary Public
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EXHIBIT E
OPINION OF BORROWER'S COUNSEL
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BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
333 WEST WACKER DRIVE, SUITE 2700
CHICAGO, ILLINOIS 60606
TELEPHONE: (312) 984-3100
FAX: (312) 984-3150
December 16, 1996
The First National Bank of Chicago, Union Bank of Switzerland
One First National Plaza New York Branch
Chicago, Illinois 60670 299 Park Avenue
New York, New York 10071
Re: $200,000,000 Unsecured Revolving Credit Agreement
Ladies and Gentlemen:
We have acted as special counsel to First Industrial, L.P., a Delaware
limited partnership ("FILP"; also referred to as "Borrower"), and First
Industrial Realty Trust, Inc., a Maryland corporation and the general partner
of FILP ("General Partner"), in connection with that certain Unsecured
Revolving Credit Agreement dated as of December 16, 1996 (the "Credit
Agreement") among Borrower, General Partner, The First National Bank of Chicago
("First Chicago"), Union Bank of Switzerland, New York Branch, a New York
Branch of a Swiss banking corporation ("UBS"), and certain other co-lenders to
be added at a subsequent date (any such added co-lenders are collectively
referred to herein as the "Co-Lenders"). For purposes of this opinion, First
Chicago, in its individual capacity and as administrative agent for UBS, the
Co-Lenders and itself; UBS, in its individual capacity and as documentation
agent for First Chicago, the Co-Lenders and itself; and the Co-Lenders are
referred to collectively in this legal opinion as "Lender." The Credit
Agreement provides for a $200,000,000 unsecured revolving credit facility (the
"Facility") in accordance with the terms and provisions of the Credit
Agreement. The Facility is administered by First Chicago, in its individual
capacity, and as administrative agent for UBS, the Co-Lenders, and itself. All
initial capitalized terms used, but not defined, in this legal opinion shall
have the meanings respectively ascribed to those terms in the Credit Agreement.
In connection with the Facility, we have examined executed copies of each
of the following documents, all of which are dated as of December 16, 1996,
except as otherwise indicated below:
(i) The Credit Agreement executed by Borrower, General Partner and
Lender;
116
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
The First National Bank of Chicago
December 16, 1996
Page 2
(ii) Promissory Note in the principal amount of $100,000,000.00
executed by Borrower in favor of First Chicago (the "First Chicago
Promissory Note");
(iii) Promissory Note in the principal amount of $100,000,000.00
executed by Borrower in favor of UBS (the "UBS Promissory Note");
(iv) Guaranty executed by General Partner in favor of First Chicago
and UBS (the "Guaranty");
(v) Competitive Bid Promissory Note, executed by Borrower in favor
of First Chicago (the "First Chicago Competitive Bid Note"); and
(vi) Competitive Bid Promissory Note, executed by Borrower in favor
of UBS (the "UBS Competitive Bid Note").
The Credit Agreement, the First Chicago Promissory Note, the UBS Promissory
Note, the Guaranty, the First Chicago Competitive Bid Note and the UBS
Competitive Bid Note are hereinafter collectively referred to as the "Loan
Documents."
We have made such examination of the laws of the State of Illinois (the
"State") as we have deemed relevant for the purpose of expressing the opinions
set forth in this opinion letter. We are not licensed in any jurisdiction
other than the State, and our opinion is, therefore, limited to the laws of the
State and federal law. We have not made a review of the laws of any other
jurisdiction, and we express no opinions concerning such laws or whether such
laws may apply.
In rendering our opinions, we have made the following assumptions which we
have not been requested to confirm, nor have we confirmed:
A. First Chicago is a national banking association validly formed and
chartered, and in good standing, under the laws of the United States of America
and such state laws as are applicable in the jurisdiction in which First
Chicago has been formed and/or chartered.
B. UBS is a New York Branch of a Swiss banking corporation validly formed
and chartered, and in good standing, under the laws of Switzerland and the
United States, and any other laws applicable in the jurisdiction in which UBS
has been formed and/or chartered.
C. All of the Credit Agreement, the First Chicago Promissory Note, the
Guaranty and the First Chicago Competitive Bid Note have been duly authorized
by all requisite action of First Chicago and the Credit Agreement constitutes a
legal, valid and binding obligation of First Chicago.
117
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
The First National Bank of Chicago
December 16, 1996
Page 3
D. All of the Credit Agreement, the UBS Promissory Note, the Guaranty and
the UBS Competitive Bid Note have been duly authorized by all requisite action
of UBS, and the Credit Agreement constitutes a legal, valid and binding
obligation of UBS.
E. The Loan Documents will be enforced in circumstances and in a manner
that are commercially reasonable.
F. If either or both of First Chicago and UBS is subject to any statute,
rule or regulation or any impediment that requires it to obtain the consent of,
or to make any declaration or filing with, any governmental authority in
connection with the transactions contemplated by the Loan Documents, all such
consents, declarations and filings have been obtained and made.
G. The performance by First Chicago and UBS of their respective
obligations under the Loan Documents does not and will not contravene or
conflict with any law, rule or regulation of, any jurisdiction, or any
agreement, judgment, order or decree of any court or regulatory body applicable
to the parties or by which either or both of First Chicago and UBS may be
bound.
H. To the extent the Loan Documents, or any one of them, purport to be
governed by the laws of a jurisdiction other than the State, the applicable
Loan Documents are or would be valid and enforceable under the laws of that
jurisdiction.
In our examination of the Loan Documents, we have assumed the genuineness
of all signatures (with the exception of the signatures of individuals
executing documents on behalf of FILP and General Partner); the authenticity of
all documents submitted to us as originals; the conformance to original
documents of all documents submitted to us as conformed or photostatic copies;
the authenticity of the originals of such latter documents; and the correctness
of all statements of fact and the truth of all representations and warranties
contained therein.
Based upon the foregoing, but subject to the assumptions, qualifications
and limitations set forth herein, we are of the opinion that the Loan Documents
have been properly authorized, executed and delivered by, or on behalf of, FILP
and General Partner, as the case may be, and constitute the legal, valid and
binding obligations of FILP and General Partner, as applicable, and such
documents are enforceable against FILP and General Partner, as applicable, in
accordance with their respective terms. Based solely on those materials that
we have received from the offices of the Secretaries of State of Delaware and
Maryland, respectively, which materials are described on Exhibit "A" attached
to this opinion, we are also of the opinion that (1) FILP is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and (2) General Partner is duly organized, validly existing and in good
standing under the laws of the State of Maryland.
118
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
The First National Bank of Chicago
December 16, 1996
Page 4
Our opinions are qualified as follows:
A. Whenever we indicate that our opinion with respect to the existence or
absence of facts is based on our knowledge, our opinion is based solely on (i)
the current actual knowledge of (1) the attorneys currently with the firm who
have represented Borrower and General Partner in connection with the
transactions contemplated by the Loan Documents and (2) any other attorneys
presently in our firm whom we have determined are likely, in the course of
representing any of Borrower and General Partner, to have actual knowledge of
the matters covered by this opinion, and (ii) the representations and
warranties of Borrower and General Partner contained in the Loan Documents.
While we have made no independent investigation as to such factual matters, we
do not know of any facts that lead us to believe such factual matters are
untrue or inaccurate.
B. Our opinion is subject to the following:
(i) The Lender's ability to enforce any of the Loan Documents may
be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or transfer, equitable
subordination and other similar laws and doctrines now or hereafter in
effect relating to or affecting creditors' rights generally;
(ii) Enforcement of the Lender's rights and remedies may be limited
by general principles of equity, regardless of whether such enforcement
is sought or considered in a proceeding in equity or at law, and in this
regard we have assumed that the Lender will exercise its rights and
remedies under the Loan Documents in good faith and in circumstances and
a manner that are commercially reasonable and in accordance with Illinois
statutes and laws;
(iii) Certain provisions of the Loan Documents may be rendered
unenforceable or limited by applicable laws and judicial decisions, but
such laws and judicial decisions do not render the Loan Documents invalid
as a whole, and, subject to qualifications and limitations elsewhere set
forth herein, legally adequate remedies exist in the Loan Documents or
pursuant to applicable law for the realization of the principal benefits
and security intended to be provided by the Loan Documents;
(iv) We express no opinion on provisions in any Loan Documents that
purport to (x) waive the statute of limitations or the manner of service
of process; (y) appoint Lender or its agents or employees as
attorney-in-fact; or (z) waive the requirements of good faith, notice and
commercial reasonableness contained in the Uniform Commercial Code as
enacted in any state, which requirements cannot be waived
119
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
The First National Bank of Chicago
December 16, 1996
Page 5
by consent. We further advise that the award of the amount of attorneys'
fees is subject to the discretion of the court before which any
proceeding involving the Loan Documents may be brought;
(v) The provisions of any documents, agreements or instrument that
(x) may require indemnification or contribution for liabilities under the
provisions of any federal or state securities laws or with respect to the
neglect or wrongful conduct of the indemnified party or its
representatives or agents; (y) purport to confer, waive or consent to the
jurisdiction of any court; or (z) waive any right granted by common or
statutory law, may be unenforceable as against public policy;
(vi) Any provisions of the Loan Documents granting so-called "self
help" or extra-judicial remedies may not be enforceable;
(vii) Requirements in the Loan Documents specifying that the
provisions thereof may be waived only in writing may not be valid,
binding or enforceable to the extent that an oral agreement or implied
agreement by trade practice or course of conduct has been created to
modify any provision of such document, or to the extent that the conduct
of the parties is deemed to effectuate a modification in the absence of
an agreement, written or otherwise;
C. Our opinion is limited to the laws of the United States (except as set
forth below) and the laws and statutes of the State and political subdivisions
thereof in effect on the date hereof, as they presently apply. We shall have
no continuing obligations to inform you of changes in law or fact subsequent to
the date hereof, or of facts about which we become aware after the date hereof.
D. We express no opinion as to the enforceability of any of the following
provisions contained in the Loan Documents:
(i) Provisions for late charges or default rates of interest, or
for additional interest or payments due only upon default. Such
provisions may, based on facts and circumstances, create or constitute
unenforceable penalties under general principles of contract law.
Furthermore, provisions of the Loan Documents providing that unpaid
interest shall be added to principal and thereafter itself bear interest,
so as to result in the so-called payment of "interest on interest", may
not be enforceable;
120
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
The First National Bank of Chicago
December 16, 1996
Page 6
(ii) Any direct restraints on alienation of real property contained
in Loan Documents, to the extent sought to be enforced as covenants
(though a violation of any such covenant would constitute an Event of
Default under Loan Documents and would entitle Lender to its remedies on
default other than injunctive relief);
(iii) Cumulative remedies, the exercise of which would have the
effect of compensating Lender in excess of its actual loss;
(iv) Provisions that require the payment of prepayment penalty,
charge or fee upon an acceleration of the Loan balance by Lender after a
default; and
(v) Grants of powers of attorney or other ex parte rights or
remedies to Lender contained in the Loan Documents.
E. We have not reviewed and do not opine as to: (i) ERISA laws, rules and
regulations; or (ii) Federal or state taxation, banking, securities or "blue
sky" laws, rules or regulations.
This opinion is limited to the matters set forth herein. No opinion may
be inferred or implied beyond the matters expressly contained herein. Without
limitation of the foregoing, no opinion is hereby rendered on any document or
instrument in connection with the Facility that was executed or delivered prior
to the transactions evidenced by the Credit Agreement, whether or not the terms
and provisions thereof are reaffirmed by, or incorporated in, the Loan
Documents.
121
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
The First National Bank of Chicago
December 16, 1996
Page 7
This opinion is rendered solely for the benefit of First Chicago, UBS and
any Co-Lenders who become Lenders or participants pursuant to the terms of the
Credit Agreement. This opinion should not, however, be disclosed, disseminated
or quoted (in whole or in part), except to regulatory agencies, auditors, and
potential participants in the Facility, and no other person or entity shall be
entitled to rely on any matter set forth herein, without the express written
consent of the undersigned.
BARACK, FERRAZZANO, KIRSCHBAUM
& PERLMAN
By:__________________________________
A Partner
122
EXHIBIT A
1. Certificate of Good Standing of First Industrial, L.P. ("FILP"), dated
December 6, 1996, certified and issued by the Secretary of State of the
State of Delaware.
2. Certificate of Limited Partnership of PROVEST, L.P. ("PROVEST"), dated
November 23, 1993, together with the Certificate of Amendment of Limited
Partnership of PROVEST, dated May 4, 1994, changing its name to FILP, and
the Certificate of Amendment of Limited Partnership of FILP, dated June
30, 1994, all certified and issued on December 9, 1996 by the Secretary of
State of the State of Delaware.
3. Certificate of Good Standing of First Industrial Realty Trust, Inc.
("General Partner"), dated December 9, 1996, certified and issued by the
Department of Assessments and Taxation of the State of Maryland.
4. Certified copy of the Articles of Incorporation for PROVEST INDUSTRIAL
REALTY TRUST, INC. ("PIRT"), dated August 10, 1993, together with the
certified copy of the Articles of Amendment of PIRT, dated April 18, 1994,
changing its name to General Partner, the certified copy of the Articles
of Amendment and Restatement of General Partner, dated June 13, 1994, the
certified copy of the Articles of Amendment of General Partner, dated June
21, 1994, the certified copy of the Articles Supplementary of General
Partner, dated November 14, 1995, and the certified copy of the Articles
of Amendment of General Partner, dated June 6, 1996, all certified and
issued on December 9, 1996 by the Department of Assessments and Taxation
of the State of Maryland.
123
EXHIBIT F
OPINION OF GENERAL PARTNER'S COUNSEL
Included in Exhibit E
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EXHIBIT G
WIRING INSTRUCTIONS
To: The First National Bank of Chicago,
as Administrative Agent (the "Agent")
under the Credit Agreement Described Below
Re: Unsecured Revolving Credit Agreement, dated as of December
_____, 1996 (as amended, modified, renewed or extended from time
to time, the "Agreement"), among First Industrial, L.P. (the
"Borrower"), First Industrial Realty Trust, Inc. ("General
Partner"), The First National Bank of Chicago, individually and
as Administrative Agent, Union Bank of Switzerland, individually
and as Documentation Agent, and the Lenders named therein.
Terms used herein and not otherwise defined shall have the
meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower
in accordance with Section 15.1 of the Agreement or based on any telephonic
notice made in accordance with the Agreement.
Facility Identification Number(s)______________________________________________
Customer/Account Name__________________________________________________________
Transfer Funds To______________________________________________________________
______________________________________________
______________________________________________
For Account No.________________________________________________________________
Reference/Attention To_________________________________________________________
Authorized Officer (Customer Representative) Date _________________________
_________________________________ ______________________________
(Please Print) Signature
Bank Officer Name Date _________________________
_________________________________ ______________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Unsecured Revolving Credit Agreement, dated as of December _____, 1996 (as
amended, modified, renewed or extended from time to time, the "Agreement")
among First Industrial, L.P. (the "Borrower"), First Industrial Realty Trust,
Inc. (the "General Partner"), The First National Bank of Chicago, individually
and as Administrative Agent, Union Bank of Switzerland, individually and as
Documentation Agent, and the Lenders named therein. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chief Financial Officer] [Chief
Accounting Officer] [Controller] of the [Borrower] [General Partner].
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the General Partner, the Borrower and their
respective Subsidiaries and Investment Affiliates during the accounting period
covered by the financial statements attached (or most recently delivered to the
Administrative Agent if none are attached).
3. The examinations described in paragraph 2 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Material Adverse Financial Change, Event of Default or Default
during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Compliance Certificate, except as set
forth below.
4. Schedule I (if attached) attached hereto sets forth financial
data and computations and other information evidencing the General Partner's
and the Borrower's compliance with certain covenants of the Agreement, all of
which data, computations and information (or if no Schedule I is attached, the
data, computations and information contained in the most recent Schedule I
attached to a prior Compliance Certificate) are true, complete and correct in
all material respects.
5. The financial statements and reports referred to in Section
8.2(i), 8.2(ii), 8.2(iv), or 8.2(viii), as the case may be, of the Agreement
which are delivered concurrently with the delivery of this Compliance
Certificate, if any, fairly present in all material respects the consolidated
financial condition and operations of the General Partner, the Borrower and
their respective Subsidiaries at such date and the consolidated results of
their operations for the period then-ended, in accordance with GAAP applied
consistently throughout such period and with prior periods and correctly state
the amounts of Consolidated Total Indebtedness, Consolidated Secured Debt,
Consolidated Senior Unsecured Debt and the Values of all Unencumbered Assets as
determined pursuant to the Agreement.
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Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this _____ day of _______________, 19___.
FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY TRUST, INC.,
General Partner
By:________________________________
Print Name:________________________
Title:_____________________________
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SCHEDULE I
CALCULATION OF COVENANTS
[QUARTER]
1. Permitted Investments (Section 8.3)
Maximum Percent
Percent of Percent of
Implied Implied
Investment Capitalization Capitalization
Category (i.e. Book Value) Value Value
-------- ---------- ----- -----
(a) unimproved land 10%
(b) other property holdings 10%
(excluding cash, Cash
Equivalents, non-industrial
Properties and Indebtedness
of any Subsidiary or to the
Borrower)
(c) stock holdings other than in 10%
Subsidiaries
(d) mortgages 10%
(e) joint ventures and 10%
partnerships
(f) total investments in 20% of Market
(a)-(e) Value Net Worth
(g) investments in unimproved 5%
land not adjacent to existing
improvements and not under
active planning for near term
development as a percentage
of Implied Capitalization
Value
(h) Identify any single industrial property in excess of 5% of Implied Capitalization Value (If none,
insert "none"):___________________________________________________________________________________
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2. Dividends (Section 8.13)
(a) Amount paid during most recent quarter __________________
(b) Amount paid during preceding three quarters __________________
(c) Funds From Operation during such four quarter period
(i) GAAP net income for such period __________________
(ii) adjustments to GAAP net income per definition
of Funds From Operation (See Schedule) __________________
(iii) Funds From Operation __________________
TOTAL DIVIDEND PAY OUT RATIO [(A) PLUS (B), DIVIDED BY (C)(III)] __________________
Must be less than or equal to: 95%
3. EBITDA To Interest Expense and Senior Preferred Stock Expense (Section 9.10(a))
(a) EBITDA for the quarter most recently ended
(i) Borrower and its Subsidiaries __________________
(ii) less extraordinary items and gain or loss on sales __________________
(iii) less GAAP income from Investment Affiliate __________________
(iv) Allocable EBITDA of Investment Affiliates __________________
(See Schedule)
(v) EBITDA [(I) MINUS (II) MINUS (III) PLUS (IV)] __________________
(b) Interest Expense for the quarter most recently ended __________________
(i) GAAP interest expense (Borrower and Subsidiaries) __________________
(ii) Capitalized interest not covered by interest reserve __________________
(iii) Interest on Guaranteed Obligations __________________
(iv) Allocable Interest (Investment Affiliates) __________________
(v) Interest Expense [SUM OF (I)-(IV)] __________________
(c) Senior Preferred Stock Expense for the quarter most recently ended __________________
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RATIO
[(a)(v) DIVIDED BY THE SUM OF (b)(v) AND (c)]: __________________
Must be greater than or equal to: 2.0
__________________
4. Consolidated Total Indebtedness Ratio (Section 9.10(b))
(a) Consolidated Total Indebtedness (See Schedule) __________________
(b) Implied Capitalization Value __________________
(i) Adjusted EBITDA for the quarter most recently ended __________________
(ii) less Adjusted EBITDA from Preleased Assets Under
Development and from Projects acquired or completed
during quarter __________________
(iii) plus full quarter pro forma adjustment for Projects
acquired or completed during quarter __________________
(iv) annualized (x4) __________________
(v) most recent Korpacz Cap Rate (not less than 9% or
more than 9.5%) _____%
(vi) (item (iv) divided by item (v)) __________________
(vii) GAAP value of Preleased Assets Under Development __________________
(viii) GAAP value of those over 270 days in category __________________
(ix) 50% of item (vii) less item (viii) __________________
(x) sum of (vi) and (ix) is "Implied Capitalization Value" __________________
CONSOLIDATED TOTAL INDEBTEDNESS RATIO
[(a) DIVIDED BY (b) EXPRESSED AS A PERCENTAGE]: __________________
Must be less than or equal to: 50%
5. Value of Unencumbered Assets Ratio (Section 9.10(c))
(a) Value of Unencumbered Assets
(i) Property Operating Income attributable to
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Unencumbered Assets owned by Borrower and
wholly-owned Subsidiaries as of end of quarter as
appropriately annualized (including pro forma Property
Operating Income for entire quarter for Unencumbered
Assets acquired during the quarter) (attach schedule
noting Property Operating Income for each
Unencumbered Asset as appropriately annualized) __________________
(ii) most recent Korpacz Cap Rate (not less than 9% or
more than 9.5%) _____%
(iii) item (i) divided by item (ii) is "Value of
Unencumbered Assets" __________________
(b) Consolidated Senior Unsecured Debt (provide schedule of
such Debt) __________________
VALUE OF UNENCUMBERED ASSETS RATIO [(a) DIVIDED BY (b)]:
Must be greater than or equal to: 1.65 (or 1.50 if
quarter ended
during a Rating
Pricing Period)
6. Property Operating Income Ratio (Section 9.10(d))
(a) Property Operating Income from all Unencumbered Assets
owned for any part of the preceding quarter __________________
(b) Debt Service on Consolidated Senior Unsecured Debt for the
preceding quarter __________________
(i) Interest Expense (Borrower and Subsidiaries only) __________________
(ii) Regular principal payments (Borrower and Subsidiaries) __________________
[(iii) Senior Preferred Stock Expense]
[only included after release of PS Guaranty] __________________
(iv) Debt Service [SUM OF (I), (II) AND (III)] __________________
PROPERTY OPERATING INCOME RATIO [(a) DIVIDED BY (b)] __________________
must be greater than or equal to: 1.75
7. Consolidated Secured Debt and Senior Preferred Stock to Implied
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Capitalization Value (Section 9.10(e))
(a) Consolidated Secured Debt
(i) secured Indebtedness of Borrower and Subsidiaries __________________
(ii) unsecured Indebtedness of Subsidiaries in excess of
$5,000,000 __________________
(iii) Consolidated Secured Debt [SUM OF (i) PLUS (ii)] __________________
(b) Senior Preferred Stock __________________
(c) Implied Capitalization Value [LINE (x) IN ITEM 4(b) ABOVE] __________________
(d) (a) plus (b) divided by (c) __________________
Must be less than or equal to: 45%
8. Minimum Market Value Net Worth (Section 9.10(f))
(a) Market Value Net Worth
(i) Implied Capitalization Value
[LINE (X) IN ITEM 4(B) ABOVE] __________________
(ii) Indebtedness of Borrower and Subsidiaries __________________
(iii) Market Value Net Worth [(I) MINUS (II)] __________________
(b) $450,000,000
(c) product of .75 and net proceeds of stock and unit offerings
since December 5, 1996 __________________
(d) sum of (b) plus (c) __________________
(a)(iii) must be greater than or equal to (d)
9. Maximum Revenue From a Single Tenant (Section 9.13)
(a) 7.5% of Consolidated Operating Partnership's total rent
revenue as of last day of quarter, annualized __________________
(b) Identify any tenant for which rent revenue
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(exclusive of tenant reimbursements) as
annualized exceeds amount shown in (a) __________________
10. Transfers of Unencumbered Assets (Section 9.5)
(a) Aggregate Value of all Unencumbered Assets transferred
during measuring period __________________
(b) $90,000,000 for initial measuring period (ends May _____,
1997 at latest) __________________
(c) Aggregate Value of Unencumbered Assets at start of current
measuring period (trailing 4 quarters) __________________
(d) Aggregate Value of Unencumbered Assets added during current
measuring period __________________
(e) 20% of sum of (c) and (d) __________________
Item (a) must be less than or equal to Item (b) or Item (e), as applicable
NOTE: To the extent of any inconsistency between the form of this
Compliance Certificate and the terms of the Agreement, the
terms of the Agreement shall prevail.
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EXHIBIT I
SCOPE OF WORK FOR ENVIRONMENTAL INVESTIGATIONS
[Schedule Omitted]
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EXHIBIT J
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
__________________________ (the "Assignor") and __________________ (the
"Assignee") is dated as of _________________, 19__. The parties hereto agree
as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Unsecured
Revolving Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Assignee
shall have purchased pursuant to this Assignment Agreement the percentage
interest specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under Sections 4 and 5 hereof are not made
on the proposed Effective Date, unless otherwise agreed to in writing by
Assignor and Assignee. The Assignor will notify the Assignee of the proposed
Effective Date no later than the Business Day prior to the proposed Effective
Date. As of the Effective Date, (i) the Assignee shall have the rights and
obligations of a Lender under the Loan Documents with respect to the rights and
obligations assigned to the Assignee hereunder and (ii) the Assignor shall
relinquish its rights and be released from its corresponding obligations under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Administrative Agent all
payments of principal, interest and fees with respect to the interest assigned
hereby. The Assignee shall advance funds directly to the Administrative Agent
with respect to all Loans and reimbursement payments made on or after the
Effective Date with respect to the interest assigned hereby. [In consideration
for the sale and assignment of Loans hereunder, (i) the Assignee shall pay the
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Assignor, on the Effective Date, an amount equal to the principal amount of the
portion of all Adjusted Corporate Base Rate Loans assigned to the Assignee
hereunder and (ii) with respect to each ratable LIBOR Advance and Competitive
Bid Loan made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such Loan either becomes due (by acceleration
or otherwise) or is prepaid (the date as described in the foregoing clauses
(a), (b) or (c) being hereinafter referred to as the "Fixed Due Date"), the
Assignee shall pay the Assignor an amount equal to the principal amount of the
portion of such Loan assigned to the Assignee which is outstanding on the Fixed
Due Date. If the Assignor and the Assignee agree that the applicable Fixed Due
Date for such Loan shall be the Effective Date, they shall agree, solely for
purposes of dividing interest paid by the Borrower on such Loan, to an
alternate interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the related
Interest Period (the "Agreed Interest Rate") and any interest received by the
Assignee in excess of the Agreed Interest Rate, with respect to such Loan for
such period, shall be remitted to the Assignor. In the event a prepayment of
any Loan which is existing on the Effective Date and assigned by the Assignor
to the Assignee hereunder occurs after the Effective Date but before the
applicable Fixed Due Date, the Assignee shall remit to the Assignor any excess
of the funding indemnification amount paid by the Borrower under Section 4.4 of
the Credit Agreement an account of such prepayment with respect to the portion
of such Loan assigned to the Assignee hereunder over the amount which would
have been paid if such prepayment amount were calculated based on the Agreed
Interest Rate and only covered the portion of the Interest Period after the
Effective Date. The Assignee will promptly remit to the Assignor (i) the
portion of any principal payments assigned hereunder and received from the
Administrative Agent with respect to any such Loan prior to its Fixed Due Date
and (ii) any amounts of interest on Loans and fees received from the
Administrative Agent which relate to the portion of the Loans assigned to the
Assignee hereunder for periods prior to the Effective Date, in the case of
ratable Adjusted Corporate Base Rate Loans or Fees, or the Fixed Due Date, in
the case of LIBOR Loans and Competitive Bid Loans, and not previously paid by
the Assignee to the Assignor.]* In the event that either party hereto receives
any payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or Commitment Fees or
Facility Fees is made under the Credit Agreement with respect to the amounts
assigned to the Assignee hereunder (other than a payment of interest or
Commitment Fees or Facility Fees attributable to the period prior to the
Effective Date or, in the case of LIBOR Loans and Competitive Bid Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the
amounts assigned to the Assignee hereunder and (ii) the interest or fee, as
applicable, which would have been paid with respect to the amounts assigned to
the Assignee hereunder if each interest rate was
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calculated at the rate of ___% rather than the actual percentage used to
calculate the interest rate paid by the Borrower or if the Commitment Fee or
Facility Fee was calculated at the rate of ___% rather than the actual
percentage used to calculate the Commitment Fee or Facility Fee paid by the
Borrower, as applicable. In addition, the Assignee agrees to pay ___% of the
fee required to be paid to the Agent in connection with this Assignment
Agreement. [THIS SENTENCE CAN BE REVISED APPROPRIATELY BASED ON HOW THE FEE IS
BEING PAID.]
*EACH ASSIGNOR MAY INSERT ITS STANDARD PROVISIONS IN LIEU OF THE PAYMENT TERMS
INCLUDED IN SECTIONS 4 AND 5 OF THIS EXHIBIT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that
it has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and
notice instructions
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are as set forth in the attachment to Schedule 1, (vi) confirms that none of
the funds, monies, assets or other consideration being used to make the
purchase and assumption hereunder are "plan assets" as defined under ERISA and
that its rights, benefits and interests in and under the Loan Documents will
not be "plan assets" under ERISA, [AND (VII) ATTACHES THE FORMS PRESCRIBED BY
THE INTERNAL REVENUE SERVICE OF THE UNITED STATES CERTIFYING THAT THE ASSIGNEE
IS ENTITLED TO RECEIVE PAYMENTS UNDER THE LOAN DOCUMENTS WITHOUT DEDUCTION OR
WITHHOLDING OF ANY UNITED STATES FEDERAL INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right pursuant to Section 13.3.1 of the Credit Agreement to
assign the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any
of the terms and conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under Sections 4, 5
and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between
the parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of Illinois.
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13. NOTICES. Notices shall be given under this Assignment Agreement
in the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: ___________________________
Title:_________________________
_________________________
_________________________
[NAME OF ASSIGNEE]
By: ___________________________
Title:_________________________
_________________________
_________________________
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SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: , 19
------------- --
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $
----------------
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** %
-----------------
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $
------------------
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement
-----------------
6. Proposed Effective Date:
-----------------
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------------------- -------------------------------------------
Title: Title:
----------------------------------- ----------------------------------------
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
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ATTACHMENT TO SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address and account information for the Assignor and the Assignee
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EXHIBIT "I" TO
ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
____________________, 19__
To: [NAME OF ADMINISTRATIVE AGENT]
__________________________________________
__________________________________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Unsecured Revolving Credit Agreement (the
"Credit Agreement") described in Item 1 of Schedule 1 attached hereto
("Schedule 1"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered
to the Administrative Agent pursuant to Section 13.3.1 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ___________, 19__ (the "Assignment"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement. From and after such purchase, the Assignee's Commitment shall be
the amount specified in Item 4 of Schedule 1 and the Assignor's Commitment
shall be the amount specified in Item 5 of Schedule 1. The Effective Date of
the Assignment shall be the later of the date specified in Item 5 of Schedule 1
or two (2) Business Days (or such shorter period as agreed to by the
Administrative Agent) after this Notice of Assignment and any fee required by
Section 13.3.1 of the Credit Agreement have been delivered to the
Administrative Agent, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee or set forth in
Section 13 of the Credit Agreement has not been satisfied.
4. The Assignor and the Assignee hereby give to the Administrative
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the
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Administrative Agent before the date specified in Item 6 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the
Assignment Agreement does not become effective on any proposed Effective Date
as a result of the failure to satisfy the conditions precedent agreed to by the
Assignor and the Assignee. At the request of the Administrative Agent, the
Assignor will give the Administrative Agent written confirmation of the
satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative
Agent on or before the Effective Date the processing fee of $3,500 required by
Section 13.3.1 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and
the Assignee request and direct that the Administrative Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Administrative Agent the original Note
received by it from the Borrower upon its receipt of a new Note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that
its rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
agent under the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Administrative Agent has no duty to supply
information with respect to the Borrower or the Loan Documents to the Assignee
until the Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:_____________________________ By:_____________________________
Title:__________________________ Title:__________________________
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ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:______________________________________
Title:___________________________________
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
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SCHEDULE 6.9
LITIGATION (BORROWER)
None
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SCHEDULE 6.19
ENVIRONMENTAL COMPLIANCE
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SCHEDULE 6.19
Environmental Reports and Agreements
PROP_NUM REPORT TYPE DATE ISSUED/COMPLETED BY
6300 W. HOWARD ST., NILES, IL
992 Preliminary Remediation Action Plan Addition 6/16/96 Groundwater Technology
992 Phase I Environmental Site Assessment Report 11/29/95 Groundwater Technology
992 Phase I Environmental Site Assessment Report 8/15/95 Groundwater Technology
992 Preliminary Risk-Based Cleanup Objectives 8/15/95 Groundwater Technology
992 Letter re. Pullman Property 8/9/95 Groundwater Technology
992 Additional Investigation Report 6/16/95 Groundwater Technology
992 Phase II Subsurface Investigation Report 4/22/95 Groundwater Technology
992 Preliminary Remediation Plan 4/22/95 Groundwater Technology
CAPITOL BUSINESS CENTER (FKA FRUEHAUF),
MIDDLETOWN, PA
962 Letter re: Effective Date of Covenant Not to Sue 9/14/95 United States Environmental
Protection Agency
962 Letter re: Buyer-Seller Consent Order and Agreement 9/12/95 Commonwealth of Pennsylvania/Department
of Environmental Resource
962 Agreement and Covenant Not to Sue 9/7/95 United States Environmental
Protection Agency
962 Letter re. Notice of Waste Treatment 9/6/95 Groundwater Technology
962 Environmental Report/Supplemental Groundwater
Sampling Result 7/1/95 Groundwater Technology
962 Consent Order and Agreement 6/26/95 Pennsylvania Department of
Environmental Resources
962 Additional Investigation Report/Addendum 1/13/95 Groundwater Technology
962 Phase I Environmental Site Assessment Report 12/14/94 Groundwater Technology
963 Letter re: Effective Date of Covenant Not to Sue 9/14/95 United States Environmental
Protection Agency
963 Letter re: Buyer-Seller Consent Order and Agreement 9/12/95 Commonwealth of Pennsylvania/Department
of Environmental Resource
963 Agreement and Covenant Not to Sue 9/7/95 United States Environmental
Protection Agency
963 Letter re. Notice of Waste Treatment 9/6/95 Groundwater Technology
963 Environmental Report/Supplemental Groundwater
Sampling Result 7/1/95 Groundwater Technology
963 Consent Order and Agreement 6/26/95 Pennsylvania Department of
Environmental Resources
963 Additional Investigation Report/Addendum 1/13/95 Groundwater Technology
963 Phase I Environmental Site Assessment Report 12/14/94 Groundwater Technology
964 Letter re: Effective Date of Covenant Not to Sue 9/14/95 United States Environmental
Protection Agency
964 Letter re: Buyer-Seller Consent Order and Agreement 9/12/95 Commonwealth of Pennsylvania/Department
of Environmental Resource
964 Agreement and Covenant Not to Sue 9/7/95 United States Environmental
Protection Agency
964 Letter re. Notice of Waste Treatment 9/6/95 Groundwater Technology
964 Environmental Report/Supplemental Groundwater
Sampling Result 7/1/95 Groundwater Technology
964 Consent Order and Agreement 6/26/95 Pennsylvania Department of
Environmental Resources
964 Additional Investigation Report/Addendum 1/13/95 Groundwater Technology
964 Phase I Environmental Site Assessment Report 12/14/94 Groundwater Technology
2900 N. SHADELAND, INDIANAPOLIS, IN
332 Industrial Discharge Permit: Modification to FIIP
as permitee 6/11/96 City of Indianapolis -
Dept. of Public Works
332 Phase II Subsurface Investigation Report 2/21/96 Groundwater Technology
332 Addendum to Phase I Environmental Assessment:
Chain of Title 2/5/96 GTI
332 Phase I Environmental Site Assessment Report 1/31/96 Groundwater Technology
332 Asbestos Survey 1/1/96 Smith Environmental Technologies
Corporation
332 Voluntary Remediation Agreement 10/4/95 Indiana Department of Environmental
Management
147
SCHEDULE 6.24
TRADE NAMES
First Industrial (Michigan), Limited Partnership
First Industrial (Minnesota), Limited Partnership
First Industrial (Tennessee), Limited Partnership
First Industrial Realty, Inc.
First Industrial Development Services
First Industrial (Alabama), Limited Partnership
First Industrial, Limited Partnership
First Industrial Realty, Inc.
First Industrial Financing Partnership (Alabama), Limited Partnership
First Industrial Financing Partnership, Limited Partnership
First Industrial Financing Partnership (Minnesota), Limited Partnership
First Industrial Financial Partnership (Wisconsin), Limited Partnership
First Industrial MP, L.P. dba First Industrial Mortgage Partnership, L.P.
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SCHEDULE 6.25
SUBSIDIARIES (BORROWER)
First Industrial Financing Partnership, L.P., a Delaware limited partnership*
First Industrial Pennsylvania, L.P., a Delaware limited partnership*
First Industrial Harrisburg, L.P., a Delaware limited partnership*
First Industrial Securities, L.P., a Delaware limited partnership*
First Industrial Mortgage Partnership, L.P., a Delaware limited partnership*
First Industrial Indianapolis, L.P., a Delaware limited partnership*
First Industrial Development Services Group, L.P., a Delaware limited
partnership*
First Industrial Enterprises of Michigan, Inc., a Michigan corporation ("FIEM")
[formerly Damone/Andrew Enterprises, Inc., a Michigan corporation]
(100% of non-voting stock; 8% of voting stock)
First Industrial (Atlanta) Management Corporation, a Maryland corporation
(100% owned by FTP)
NOTE: 1. FIEM owns 100% of capital stock of First Industrial
Group of Michigan, Inc., a Michigan corporation, which,
in turn, owns 100% of capital stock of the following
Michigan corporations:
First Industrial of Michigan, Inc.
First Industrial Associates of Michigan, Inc.
First Industrial Construction Company of Michigan, Inc.
2. FTP owns 100% of capital stock of First Industrial
(Atlanta) Management Corporation, a Maryland
corporation
3. For property ownership information, see Exhibit 1 to
this Schedule 6.25.
* Borrower owns 99% limited partnership interest in this entity.
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SCHDULE 6.26
UNENCUMBERED ASSETS
[Schedule Omitted]
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SCHEDULE 7.8
LITIGATION (GENERAL PARTNER)
None
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SCHEDULE 7.18
SUBSIDIARIES (GENERAL PARTNER)
1. FI Development Services Corporation, a Maryland corporation
2. First Industrial Finance Corporation, a Maryland corporation
3. First Industrial Management Corporation, a Maryland corporation
4. FR Acquisitions, Inc., a Maryland corporation
5. First Industrial Pennsylvania Corporation, a Maryland corporation
6. First Industrial Harrisburg Corporation, a Maryland corporation
7. First Industrial Securities Corporation, a Maryland corporation
8. First Industrial Mortgage Corporation, a Maryland corporation
9. First Industrial Indianapolis Corporation, a Maryland corporation
NOTE:
1. Each of these entities is 100% wholly owned by the General Partner.
2. None of these entities owns any properties.
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