EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of
MARCH 30, 2006
among
EDUCATION REALTY OPERATING PARTNERSHIP, LP
as Borrower
and
The Lenders Party Hereto
and
KEYBANK, NATIONAL ASSOCIATION,
as Administrative Agent
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KEYBANC CAPITAL MARKETS,
As Sole Bookrunner and Lead Arranger
TABLE OF CONTENTS
ARTICLE I Definitions ..................................................... 1
SECTION 1.01 Defined Terms ............................................. 1
SECTION 1.02 Classification of Loans and Borrowings .................... 17
SECTION 1.03 Terms Generally ........................................... 17
SECTION 1.04 Accounting Terms; GAAP .................................... 18
ARTICLE II The Credits .................................................... 18
SECTION 2.01 Commitments ............................................... 18
SECTION 2.02 Loans and Borrowings ...................................... 18
SECTION 2.03 Interest Elections ........................................ 19
SECTION 2.04 Repayment of Loans; Evidence of Debt ...................... 20
SECTION 2.05 Prepayment of Loans ....................................... 20
SECTION 2.06 Fees ...................................................... 21
SECTION 2.07 Interest .................................................. 21
SECTION 2.08 Alternate Rate of Interest ................................ 22
SECTION 2.09 Increased Costs ........................................... 23
SECTION 2.10 Break Funding Payments .................................... 24
SECTION 2.11 Taxes ..................................................... 24
SECTION 2.12 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs .................................................. 25
SECTION 2.13 Mitigation Obligations; Replacement of Lenders ............ 27
SECTION 2.14 Extension ................................................. 28
ARTICLE III Representations and Warranties ................................ 29
SECTION 3.01 Organization; Powers ...................................... 29
SECTION 3.02 Authorization; Enforceability ............................. 29
SECTION 3.03 Governmental Approvals; No Conflicts ...................... 29
SECTION 3.04 Financial Condition; No Material Adverse Change ........... 30
SECTION 3.05 Properties ................................................ 30
SECTION 3.06 Intellectual Property ..................................... 32
SECTION 3.07 Litigation and Environmental Matters ...................... 32
SECTION 3.08 Compliance with Laws and Agreements ....................... 34
SECTION 3.09 Investment and Holding Company Status ..................... 34
SECTION 3.10 Taxes ..................................................... 34
SECTION 3.11 ERISA ..................................................... 34
SECTION 3.12 Disclosure ................................................ 35
SECTION 3.13 Insurance ................................................. 35
SECTION 3.14 Margin Regulations ........................................ 35
SECTION 3.15 Subsidiaries; REIT Qualification .......................... 35
ARTICLE IV Conditions ..................................................... 36
SECTION 4.01 Effective Date ............................................ 36
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ARTICLE V Affirmative Covenants ........................................... 37
SECTION 5.01 Financial Statements; Ratings Change and Other
Information ............................................... 37
SECTION 5.02 Financial Tests ........................................... 38
SECTION 5.03 Notices of Material Events ................................ 38
SECTION 5.04 Existence; Conduct of Business ............................ 39
SECTION 5.05 Payment of Obligations .................................... 39
SECTION 5.06 Maintenance of Properties; Insurance ...................... 39
SECTION 5.07 Books and Records; Inspection Rights ...................... 41
SECTION 5.08 Compliance with Laws ...................................... 41
SECTION 5.09 Use of Proceeds ........................................... 41
SECTION 5.10 Fiscal Year ............................................... 41
SECTION 5.11 Environmental Matters ..................................... 41
SECTION 5.12 Further Assurances ........................................ 42
SECTION 5.13 Parent Covenants .......................................... 42
ARTICLE VI Negative Covenants ............................................. 42
SECTION 6.01 Sale/Leaseback ............................................ 43
SECTION 6.02 Liens ..................................................... 43
SECTION 6.03 Fundamental Changes ....................................... 43
SECTION 6.04 Investments, Loans, Advances and Acquisitions ............. 44
SECTION 6.05 Hedging Agreements ........................................ 45
SECTION 6.06 Restricted Payments ....................................... 45
SECTION 6.07 Transactions with Affiliates .............................. 45
SECTION 6.08 Parent Negative Covenants ................................. 45
SECTION 6.09 Restrictive Agreements .................................... 46
SECTION 6.10 Indebtedness .............................................. 46
ARTICLE VII Events of Default ............................................. 47
ARTICLE VIII The Administrative Agent ..................................... 49
ARTICLE IX Miscellaneous .................................................. 51
SECTION 9.01 Notices ................................................... 51
SECTION 9.02 Waivers; Amendments ....................................... 52
SECTION 9.03 Expenses; Indemnity; Damage Waiver ........................ 52
SECTION 9.04 Successors and Assigns .................................... 54
SECTION 9.05 Survival .................................................. 56
SECTION 9.06 Counterparts; Integration; Effectiveness; Joint and
Several ................................................... 57
SECTION 9.07 Severability .............................................. 58
SECTION 9.08 Right of Setoff ........................................... 58
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of
Process ................................................... 58
SECTION 9.10 WAIVER OF JURY TRIAL ...................................... 59
SECTION 9.11 Headings .................................................. 59
SECTION 9.12 Confidentiality ........................................... 59
SECTION 9.13 Interest Rate Limitation .................................. 60
SECTION 9.14 USA PATRIOT Act ........................................... 61
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SCHEDULES:
Schedule 2.01 - Commitments
Schedule 3.05(f) - Earthquake or Seismic Area
Schedule 3.07 - ADA Disclosure
Schedule 3.15 - Subsidiaries
Schedule 5.12 - Pool
Schedule 6.02 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Guaranty
Exhibit D - Form of Note
Exhibit E - Form of Interest Rate Election
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CREDIT AGREEMENT ("Agreement") dated as of
March 30, 2006, among
EDUCATION REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership, the
LENDERS party hereto, KEYBANK, NATIONAL ASSOCIATION, as Administrative Agent,
and KEYBANC CAPITAL MARKETS, as Sole Bookrunner and Lead Arranger
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms.
As used in this Agreement, the following terms have the meanings specified
below:
"ABR," when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted EBITDA" means, for a given testing period, EBITDA less the
Capital Expenditure Reserve.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means KeyBank, National Association, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Loan, as the case may be, the applicable rate per annum set forth
below under the caption "ABR Spread" or "Eurodollar Spread," as the case may be:
ABR Eurodollar
Spread Spread
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1.25% 2.75%
"Appraisal" (whether one or more) means a written appraisal of the
Mortgaged Properties by an appraiser satisfactory to the Administrative Agent.
Each Appraisal must comply with all Legal Requirements and, unless specifically
provided to the contrary in this Agreement, must be in form and substance
satisfactory to the Administrative Agent and all of the Required Lenders.
"Appraised Value" means the value of Real Property, as set forth in the
Appraisal for such Real Property.
"Approved Fund" has the meaning set forth in Section 9.04(b).
"Assets Under Development" means all Real Property, or phases thereof, that
is under construction or development as an income-producing project in a
diligent manner and in accordance with industry standard construction schedules,
but for which a certificate of occupancy has not been issued.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Education Realty Operating Partnership, LP, a Delaware
limited partnership.
"Borrowing" means Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
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"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in Boston, Massachusetts or New York, New York are
authorized or required by law to remain closed; provided that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditure Reserve" means, on an annual basis, an amount equal to
(a) the aggregate number of beds available for lease in each Real Property
parcel owned by Borrower or any Subsidiary measured as of the last day of each
of the immediately preceding four (4) calendar quarters and averaged, multiplied
by (b) $125.00.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than thirty percent (30%) of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Parent; (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Parent by Persons who were neither (i) nominated by the board
of directors of the Parent nor (ii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of the Parent by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement by any Governmental Authority, (b) any change in any
law, rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by any
Lender (or, for purposes of Section 2.09(b), by any lending office of such
Lender or by such Lender's holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all property (if any), tangible or intangible, real,
personal or mixed, now or hereafter subject to the liens and security interests
of the Loan Documents, or intended so to be.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make a term loan to the Borrower on the closing date, as such
commitment may be reduced or increased from time to time pursuant to assignments
by or to such Lender pursuant to Section 9.04. The initial amount of each
Lender's Commitment is set forth on Schedule 2.01, or in the
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Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The aggregate amount of the Lenders' Commitments is
$50,000,000.00.
"Compliance Certificate" has the meaning set forth in Section 5.01(c)
hereof and a form of which is attached hereto as Exhibit B.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise, which
includes the customary powers of a managing member of any limited liability
company, any general partner of any limited partnership, or any board of
directors of a corporation. "Controlling" and "Controlled" have meanings
correlative thereto.
"Credit Party" means Borrower, Guarantor and each party to a Pledge.
"Current Survey" shall mean the boundary survey of each of the Mortgaged
Properties that is more particularly described on Schedule 1.01 hereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of America.
"EBITDA" means an amount derived from (a) net income, plus (b) to the
extent included in the determination of net income, depreciation, amortization,
interest expense and income taxes, plus or minus (c) to the extent included in
the determination of net income, any extraordinary losses or gains resulting
from sales or payment of Indebtedness, and (d) as approved by the Administrative
Agent, such approval not to be unreasonably withheld, any extraordinary,
non-recurring expenses associated with any financing, merger, acquisition,
divestiture, or other capital transaction, in each case, as determined on a
consolidated basis in accordance with GAAP, and including (without duplication)
the Equity Percentage of EBITDA for the Borrower's Unconsolidated Affiliates. If
EBITDA is calculated over a period of less than four (4) quarters which includes
the month of August, then the average EBITDA for the months in the calculation
period other than August will be substituted for the August EBITDA.
"EDR" means Education Realty Operating Partnership, LP, a Delaware limited
partnership.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Eligible Ground Lease" shall mean a lease meeting the following
requirements: (a) a remaining term (including renewal options exercisable at
lessee's sole option) of at least forty (40) years, (b) may be transferred
and/or assigned by lessee without landlord's consent and (c) the Administrative
Agent has determined that the ground lease is financeable in that it contains
customary lender protection provisions and provides or allows for, without
further consent from the landlord, (i) notice and right to cure to lessee's
lender, (ii) a pledge and mortgage of the
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leasehold interest, (iii) recognition of a foreclosure of the leasehold interest
including no prohibition on entering into a new lease with the lender, and (iv)
no right of landlord to terminate the lease without consent of lessee's lender.
"Environmental Assessment" shall mean a written assessment and report
ordered by the Administrative Agent as to the status of any Mortgaged Properties
regarding compliance with any Legal Requirements related to environmental
matters. Each Environmental Assessment must comply with all Legal Requirements.
"Environmental Claim" means any notice of violation, action, claim,
Environmental Lien, demand, abatement or other order or direction (conditional
or otherwise) by any Governmental Authority or any other Person for personal
injury (including sickness, disease or death), tangible or intangible property
damage, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restriction,
resulting from or based upon (i) the existence, or the continuation of the
existence, of a Release (including, without limitation, sudden or non-sudden
accidental or non-accidental Releases) of, or exposure to, any Hazardous
Material, or other Release in, into or onto the environment (including, without
limitation, the air, soil, surface water or groundwater) at, in, by, from or
related to any property owned, operated or leased by the Borrower or any of its
Subsidiaries or any activities or operations thereof; (ii) the environmental
aspects of the transportation, storage, treatment or disposal of Hazardous
Materials in connection with any property owned, operated or leased by the
Borrower or any of its Subsidiaries or their operations or facilities; or (iii)
the violation, or alleged violation, of any Environmental Laws or Environmental
Permits of or from any Governmental Authority relating to environmental matters
connected with any property owned, leased or operated by the Borrower or any of
its Subsidiaries.
"Environmental Indemnity" means, collectively, each Environmental Risk
Agreement of even date herewith executed by the Borrower and Guarantor and
delivered to the Administrative Agent, together with each Environmental Risk
Agreement hereafter executed with respect to any of the Mortgaged Properties.
"Environmental Laws" means all applicable laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous Material or to
health and safety matters and includes (without limitation) the Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. Section 136 et seq., the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. Section 6901 et seq., the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the
Clean Water Act, 33 U.S.C. Section 1251 et seq., the Occupational Safety and
Health Act, 29 U.S.C. Section 651 et seq., (to the extent the same relates to
any Hazardous Materials), and the Oil Pollution Act of 1990, 33 U.S.C. Section
2701 et seq., as such laws have been amended or supplemented, and the
regulations promulgated pursuant thereto, and all analogous state and local
statutes.
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"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) exposure to any Hazardous Materials in violation of any Environmental Law,
(c) the Release or threatened Release of any Hazardous Materials into the
environment in violation of any Environmental Law or (d) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"Environmental Lien" means any lien in favor of any Governmental Authority
arising under any Environmental Law.
"Environmental Permit" means any permit required under any applicable
Environmental Law or under any and all supporting documents associated
therewith.
"Equity Percentage" means the aggregate ownership percentage of Borrower in
each Unconsolidated Affiliate, which shall be calculated as the greater of (a)
Borrower's nominal capital ownership interest in the Unconsolidated Affiliate as
set forth in the Unconsolidated Affiliate's organizational documents, and (b)
Borrower's economic ownership interest in the Unconsolidated Affiliate,
reflecting Borrower's share of income and expenses of the Unconsolidated
Affiliate.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
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"Eurodollar," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.13(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.11(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.11(a).
"Extension Request" has the meaning set forth in Section 2.14.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer or the chief
accounting officer of the Borrower.
"Financing Statements" means all such Uniform Commercial Code financing
statements as the Administrative Agent shall require, duly authorized by the
Borrower to give notice of and to perfect or continue perfection of the Lenders'
security interest in all Collateral.
"Fixed Charge Coverage Ratio" shall mean the ratio of (a) the sum of the
Parent's Adjusted EBITDA and the Borrower's Adjusted EBITDA for the immediately
preceding four (4) calendar quarters (or the period between the Measurement Date
and the calculation date, if shorter); to (b) all of the principal due and
payable and principal paid on the Parent's Indebtedness and on the Borrower's
Indebtedness (including scheduled payments on Capital Lease Obligations), plus
all of the Parent's and the Borrower's Interest Expense, plus the aggregate of
all cash dividends payable on the preferred stock of the Parent or any of its
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Subsidiaries, in each case for the period used to calculate Adjusted EBITDA, all
of the foregoing calculated without duplication.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is organized. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Funds From Operations" shall mean net income of the Borrower determined in
accordance with GAAP, plus depreciation and amortization; provided, that there
shall not be included in such calculation any gain or loss from debt
restructuring and sales of property or, as approved by the Administrative Agent,
such approval not to be unreasonably withheld, any extraordinary, non-recurring
expenses associated with any financing, merger, acquisition, divestiture, or
other capital transaction. Funds From Operations will be calculated for the four
(4) calendar quarters immediately preceding the date of the calculation. Funds
From Operations shall be calculated on a consolidated basis, and including
(without duplication) the Equity Percentage of Funds From Operations for the
Borrower's Unconsolidated Affiliates.
"GAAP" means generally accepted accounting principles in the United States
of America, subject to the provisions of Section 1.04.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantor" means the Parent, and any other Person who from time to time
has executed a Guaranty as required by the terms of this Agreement.
"Guaranty" means a guaranty in the form of Exhibit C attached hereto.
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"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances or wastes, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law;
provided, that Hazardous Materials shall not include any such substances or
wastes utilized or maintained at the Real Property in the ordinary course of
business and in accordance with all applicable Environmental Laws.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Historical Value" shall mean the purchase price of Real Property
(including improvements) and ordinary related purchase transaction costs, plus
the cost of subsequent capital improvements (including construction costs for
property under construction or development) made by the Borrower, less any
provision for losses, all determined in accordance with GAAP. If the Real
Property is purchased as a part of a group of properties, the Historical Value
shall be calculated based upon a pro rata allocation of the aggregate purchase
price by the Borrower based on net operating income of such property, and
consistent with GAAP.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (k)
all obligations contingent or otherwise, of such Person with respect to any
Hedging Agreements (calculated on a mark-to-market basis as of the reporting
date), and (l) payments received in consideration of sale of an ownership
interest in Borrower when the interest so sold is determined, and the date of
delivery is, more than one (1) month after receipt of such payment and only to
the extent that the obligation to deliver such interest is not payable solely in
such interest of such Person. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor. Indebtedness shall be calculated on a consolidated basis in
accordance with GAAP, and including (without duplication) the Equity Percentage
of Indebtedness for the Borrower's Unconsolidated Affiliates.
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"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Coverage Ratio" shall mean the ratio of (a) the sum of the
Parent's EBITDA and the Borrower's EBITDA for the immediately preceding four (4)
calendar quarters (or the period between the Measurement Date and the
calculation date, if shorter) to (b) all of the Parent's and the Borrower's
Interest Expense for the period used to calculate EBITDA.
"Interest Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.03.
"Interest Expense" shall mean all of a Person's paid, accrued or
capitalized interest expense on such Person's Indebtedness (whether direct,
indirect or contingent, and including, without limitation, interest on all
convertible debt), and including (without duplication) the Equity Percentage of
Interest Expense for the Borrower's Unconsolidated Affiliates.
"Interest Payment Date" means the first Business Day of each calendar
month.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two or three months
thereafter; provided, that (a) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (b)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Borrowing,
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"KeyBank" means KeyBank, National Association, in its individual capacity.
"Legal Requirement" means any law, statute, ordinance, decree, requirement,
order, judgment, rule, regulation (or interpretation of any of the foregoing)
of, and the terms of any license or permit issued by, any Governmental
Authority.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m.,
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London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate (rounded upwards, if necessary, to the
next 1/100 of 1%) at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to an asset, (a) any mortgage, deed of trust,
lien (statutory or other), pledge, hypothecation, negative pledge, collateral
assignment, encumbrance, deposit arrangement, charge or security interest in, on
or of such asset; (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset; (c) the filing under the Uniform Commercial Code or
comparable law of any jurisdiction of any financing statement naming the owner
of the asset to which such Lien relates as debtor; (d) any other preferential
arrangement of any kind or nature whatsoever intended to assure payment of any
Indebtedness or other obligation; and (e) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the Pledge,
the Financing Statements and all other instruments, agreements and written
obligations executed and delivered by any of the Credit Parties in connection
with the transactions contemplated hereby.
"Loan" or Loans" means the term loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Management Company" means the manager of the Real Property owned by EDR or
a Subsidiary of EDR, together with Place Management Group, LLC which manages
thirteen (13) properties purchased from Place Properties, L.P.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, or condition, financial or otherwise, of (i) the
Borrower and its Subsidiaries, other than owners of Mortgaged Properties, and
the Guarantor, taken as a whole, or (ii) any owner of a Mortgaged Property, (b)
the ability of any of the Credit Parties to perform their obligations under the
Loan Documents or (c) the rights of or benefits available to the Administrative
Agent or the Lenders under the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the other Credit Parties in an aggregate
principal amount exceeding $10,000,000.
"Maturity Date" means March 30, 2009, as the same may be extended in
accordance with Section 2.14.
"Maximum Rate" shall have the meaning set forth in Section 9.13.
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"Measurement Date" means December 31, 2005.
"Mortgaged Properties" means the Real Property described on Schedule 5.12
attached hereto and together with any additional property, whether now existing
or hereafter acquired, which is or is to become part of the Pool.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Operating Income" shall mean, for any income producing operating Real
Property, the difference between (a) any rentals, proceeds and other income
received from such property, including early lease termination penalties to the
extent no new tenant is in place and allocated over the applicable remaining
term (but excluding (i) security or other deposits, and (ii) other income of a
non-recurring nature) during the determination period, less (b) an amount equal
to all costs and expenses (excluding Interest Expense, any expenditures that are
capitalized in accordance with GAAP, non-cash expenses such as depreciation and
amortization, and as approved by the Administrative Agent, such approval not to
be unreasonably withheld, any extraordinary, non-recurring expenses associated
with any financing, merger, acquisition, divestiture, or other capital
transaction) incurred as a result of, or in connection with, or properly
allocated to, the operation or leasing of such property during the determination
period; provided, however, that the amount for the expenses for the management
of a property included in clause (b) above shall be set at three percent (3%) of
(I) the amount provided in clause (a) above, less (II) a bad debt allowance. Net
Operating Income shall be calculated based on the immediately preceding four (4)
calendar quarters unless the Real Property has not been owned by the Borrower or
its Subsidiaries for four (4) calendar quarters, in which event (i) Net
Operating Income shall be calculated for the period of ownership, and
annualized, and (ii) if the period of ownership includes the month of August,
the Net Operating Income for August will be disregarded in the annualization
calculation. Net Operating Income shall be calculated on a consolidated basis in
accordance with GAAP, and including (without duplication) the Equity Percentage
of Net Operating Income for the Borrower's Unconsolidated Affiliates.
"Note" means a promissory note in the form attached hereto as Exhibit D
payable to a Lender evidencing certain of the obligations of the Borrower to
such Lender and executed by Borrower, as the same may be amended, supplemented,
modified or restated from time to time; "Notes" means, collectively, all of such
Notes outstanding at any given time.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement, and not including the Excluded
Taxes.
"Parent" means Education Realty Trust, Inc., a Maryland corporation and the
parent of EDR.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
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"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(c) deposits to secure the performance of bids, trade contracts,
purchase, construction or sales contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(d) the Title Instruments, Liens and other matters described in the
Title Insurance Policy;
(e) the liens granted to the Administrative Agent hereunder;
(f) uniform commercial code protective filings with respect to
personal property leased to the Borrower or any Subsidiary;
(g) the liens and security interest granted under the Revolving Loan
Documents; and
(h) landlords' liens for rent not yet due and payable;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness other than the Loans.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having an investment grade credit rating on the
date of acquisition;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
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(d) fully collateralized repurchase agreements with a term of not more
than 90 days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in clause (c) above;
and
(e) investments in Subsidiaries and Unconsolidated Affiliates made in
accordance with this Agreement.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge" shall mean, collectively, each Ownership Interest Pledge and
Security Agreement executed by the Borrower and any other Subsidiary or
Affiliate of the Borrower, pledging their respective ownership interests in each
owner of any present or future Mortgaged Property (and the respective owners
thereof) to the Administrative Agent as Collateral, with the Borrower agreeing
to execute (or cause the execution of) such additional Pledges with respect to
future Mortgaged Properties as the Administrative Agent may reasonably require.
"Pool" shall mean, from time to time, the Real Properties subject to a deed
of trust, mortgage or other lien in favor of the Agent under the Revolving Loan
Documents.
"Pool Value" means, as to each property in the Pool, (a) for Real Property
that has been owned by the Borrower for less than twelve (12) months, the lesser
of (i) the "as stabilized" Appraised Value of such property, and (ii) the
Historical Value of such property, and (b) thereafter and for all other Real
Property, the "as is" Appraised Value of such property.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by KeyBank, National Association, as its prime rate in effect at
its principal office in Cleveland, Ohio; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Real Property" means, collectively, all interest in any land and
improvements located thereon (including direct financing leases of land and
improvements owned by a Person), together with all equipment, furniture,
materials, supplies and personal property now or hereafter located at or used in
connection with the land and all appurtenances, additions, improvements,
renewals, substitutions and replacements thereof now or hereafter acquired by
any Person.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
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"Release" means any release, spill, emission, leaking, pumping, pouring,
dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching
or migration on or into the indoor or outdoor environment or into or out of any
property.
"Remedial Action" means all actions, including without limitation any
capital expenditures, required or necessary to (i) clean up, remove, treat or in
any other way address any Hazardous Material; (ii) prevent the Release or threat
of Release, or minimize the further Release, of any Hazardous Material so it
does not migrate or endanger public health or the environment; (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care; or
(iv) bring facilities on any property owned or leased by the Borrower or any of
its Subsidiaries into compliance with all Environmental Laws.
"Required Lenders" means, at any time, Lenders having Commitments
representing at least 66-2/3% of the sum of the total Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any ownership interests in
the Borrower or any Subsidiary, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such ownership interests in the Borrower or any option, warrant or other
right to acquire any such shares of capital stock of the Borrower.
"Revolving Loan" means the up to $100,000,000.00 revolving loan facility
provided by KeyBank, National Association, as agent, and certain other lenders,
to the Borrower pursuant to the Revolving Loan Documents.
"Revolving Loan Documents" means the various documents and instruments
entered into between the Borrower, KeyBank, National Association, as agent and
lender, and the other lenders evidencing the Revolving Loan.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Governmental Authority to which the Administrative Agent is
subject, with respect to the Adjusted LIBO Rate, for Eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial
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statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent. EDR is a Subsidiary of the Parent.
"Tangible Net Worth" shall mean total assets (without deduction for
accumulated depreciation) less (1) all intangibles and (2) all liabilities
(including contingent and indirect liabilities), all determined in accordance
with GAAP. The term "intangibles" shall include, without limitation, (i)
deferred charges, and (ii) the aggregate of all amounts appearing on the assets
side of any such balance sheet for franchises, licenses, permits, patents,
patent applications, copyrights, trademarks, trade names, goodwill, treasury
stock, experimental or organizational expenses and other like intangibles. The
term "liabilities" shall include, without limitation, (i) Indebtedness secured
by Liens on Property of the Person with respect to which Tangible Net Worth is
being computed whether or not such Person is liable for the payment thereof,
(ii) deferred liabilities, and (iii) Capital Lease Obligations. Tangible Net
Worth shall be calculated on a consolidated basis in accordance with GAAP.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Total Asset Value" means the sum of (without duplication) (a) the
aggregate Value of all of Borrower's and its Subsidiaries' Real Property, plus
(b) the amount of any cash and cash equivalents, excluding tenant security and
other restricted deposits of the Borrower and its Subsidiaries. Total Asset
Value shall be calculated on a consolidated basis in accordance with GAAP.
"Total Leverage Ratio" shall mean the ratio (expressed as a percentage) of
(a) the Borrower's Indebtedness plus the Parent's Indebtedness to (b) Total
Asset Value.
"Transactions" means the execution, delivery and performance by the Credit
Parties of the Loan Documents, the borrowing of the Loan, and the use of the
proceeds.
"Type," when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Unconsolidated Affiliate" means, without duplication, in respect of any
Person, any other Person (other than a Person whose stock is traded on a
national trading exchange) in whom such Person holds a voting equity or
ownership interest and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated financial
statements of such Person.
"Value" means the sum of the following:
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(a) for Real Property that is not in the Pool and that Borrower or a
Subsidiary of Borrower has owned for all of the immediately preceding four (4)
calendar quarters, the result of dividing (i) the aggregate Net Operating Income
of the subject property based on the immediately preceding four (4) calendar
quarters, by (ii) eight percent (8.00%); plus
(b) for Real Property that is not in the Pool and that Borrower or a
Subsidiary of Borrower has not owned for all of the immediately preceding four
(4) calendar quarters, the Historical Value of the subject property; plus
(c) for Real Property that is in the Pool, the aggregate Pool Value;
plus
(d) for Real Property that is Assets Under Development or undeveloped
land, the Historical Value of the subject property.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by
Type (e.g., a "Eurodollar Loan") and Borrowings also may be classified and
referred to by Type (e.g., a "Eurodollar Borrowing").
SECTION 1.03 Terms Generally.
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include," "includes," and "including" shall be deemed to be followed by the
phrase "without limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein," "hereof,"
and "hereunder," and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. All references to the Borrower shall be deemed to be references
to all Persons constituting the Borrower or each of them (whichever the context
requires) and the obligations of such Persons under this Agreement and the other
Loan Documents shall be joint and several as they relate to the Borrower.
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SECTION 1.04 Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.01 Commitments.
Subject to the terms and conditions set forth herein, each Lender agrees to
make a term Loan to the Borrower upon the execution hereof in an aggregate
principal amount equal to such Lender's Commitment.
SECTION 2.02 Loans and Borrowings.
(a) The failure of any Lender to make the Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender's failure to the Loan as
required.
(b) Each Lender at its option may make any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $1,000,000. At the time
that each ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than
$1,000,000, provided that an ABR Borrowing may be in an aggregate amount
that is equal to the entire remaining balance of the Loans. Borrowings of
more than one Type may be outstanding at the same time; provided that there
shall not at any time be more than a total of six (6) Eurodollar Borrowings
outstanding.
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(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date.
SECTION 2.03 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in at
closing and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and
the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent EDR (on behalf of the Borrower) of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later
than 12:00 noon, Boston, Massachusetts time, three Business Days before the
date of the proposed election or (b) in the case of an ABR Borrowing, not
later than 12:00 noon, Boston, Massachusetts time, one Business Day before
the date of the proposed election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest
Election Request in the form of Exhibit E (with proper election made for an
interest rate election) and signed by EDR, on behalf of the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
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If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.04 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan on the Maturity Date. The Loans shall be
evidenced by the Notes.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure
of any Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
SECTION 2.05 Prepayment of Loans.
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(a) The Borrower shall have the right at any time and from time to
time to prepay, without penalty, any Borrowing in whole or in part, subject
to prior notice in accordance with paragraph (b) of this Section, and
subject to Section 2.10, if applicable.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Boston,
Massachusetts time, three (3) Business Days before the date of prepayment,
and (ii) in the case of prepayment of an ABR Borrowing, not later than
11:00 a.m., Boston, Massachusetts time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid. Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders
of the contents thereof. Each partial prepayment of any Borrowing shall be
in an amount that is an integral multiple of $100,000 and not less than
$500,000. Each prepayment of a Loan shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.07.
(c) In connection with the prepayment of any Loan prior to the
expiration of the Interest Period applicable thereto, the Borrower shall
also pay any applicable expenses pursuant to Section 2.10.
(d) Amounts to be applied to the prepayment of Loans pursuant to any
of the preceding subsections of this Section shall be applied, first, to
reduce outstanding ABR Loans and next, to the extent of any remaining
balance, to reduce outstanding Eurodollar Loans. Each such prepayment shall
be applied to prepay ratably the Loans of the Lender.
SECTION 2.06 Fees.
(a) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution,
in the case of facility fees and participation fees, to the Lenders. Fees
paid shall not be refundable under any circumstances.
(b) In the event that the Maturity Date is extended in accordance with
the terms of Section 2.14, the Borrower agrees to pay to the Administrative
Agent for the account of each Lender an extension fee equal to 0.20% of the
aggregate outstanding Loans on the first effective day of the extension.
SECTION 2.07 Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the
lesser of (x) the Alternate Base Rate plus the Applicable Rate, or (y) the
Maximum Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the lesser of (a) the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate, or (b) the Maximum
Rate.
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(c) Notwithstanding the foregoing, (A) if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is
not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal
of any Loan, the lesser of (x) 4% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section, or (y)
the Maximum Rate, or (ii) in the case of any other amount, the lesser of
(x) 4% plus the rate applicable to ABR Loans as provided in paragraph (a)
of this Section, or (y) the Maximum Rate; and (B) after the occurrence of
any Event of Default, at the option of the Administrative Agent, or if the
Administrative Agent is directed in writing by the Required Lenders to do
so, the Loan shall bear interest at a rate per annum equal to the lesser of
(x) 4% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section, or (y) the Maximum Rate.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii)
in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the end of the Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable
on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days and twelve (12) 30-day months, and in each case shall be payable
for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO
Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.08 Alternate Rate of Interest.
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
(i) the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period and (ii) such fact is
generally applicable to its loans of this type to similar borrowers, as
evidenced by a certification from such Lenders;
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then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective;
provided that if the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.09 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition (other than one relating to Excluded Taxes) affecting
this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender, as the case may be, for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender's capital or on the capital of such Lender's holding company,
if any, as a consequence of this Agreement or the Loans made by such
Lender, to a level below that which such Lender or such Lender's could have
achieved but for such Change in Law (taking into consideration such
Lender's and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender or
such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's
right to demand
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such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender,
as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's intention to
claim compensation therefor; provided further that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.10 Break Funding Payments.
In the event of (a) the payment of any principal of any Eurodollar Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to convert, continue or prepay any Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(b)), or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.13, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the Eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.11 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent,
Lender receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
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(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or
such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as
will permit such payments to be made without withholding or at a reduced
rate.
SECTION 2.12 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.09, Section 2.10 or Section 2.11, or otherwise) prior to 1:00
p.m., Boston, Massachusetts time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received
after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at its offices at 225 Franklin Street,
Boston, Massachusetts, except that payments pursuant to Sections 2.09,
2.10, 2.11 and 9.03 shall be made directly to the Persons entitled thereto.
If the Administrative Agent receives a payment for the account of a Lender
prior to 1:00 p.m., Boston, Massachusetts time, such payment must be
delivered to the Lender on the same day and if it is not so delivered due
to the fault of the Administrative Agent, the Administrative Agent shall
pay to the Lender entitled to the payment interest thereon for each day
after payment should have been
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received by the Lender pursuant hereto until the Lender receives payment,
at the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on
interbank compensation. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest
and fees then due hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then
due to such parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders the
amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for
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each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(d) or (e), 2.06(b) or 2.13(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.13 Mitigation Obligations; Replacement of Lenders.
(a) Each Lender will notify the Borrower of any event occurring after
the date of this Agreement which will entitle such Person to compensation
pursuant to Sections 2.07 and 2.09 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation,
provided that such Person shall not be liable for the failure to provide
such notice. If any Lender requests compensation under Section 2.07, or if
the Borrower is required to pay any additional amount to any such Person or
any Governmental Authority for the account of any Lender pursuant to
Section 2.07, then such Lender shall use reasonable efforts to avoid or
minimize the amounts payable, including, without limitation, the
designation of a different lending office for funding or booking its Loans
hereunder or the assignment of its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.07 or 2.09, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable and documented costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender requests compensation under Section 2.07, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.09, or if any Lender defaults in its obligation to fund Loans hereunder,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all
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other amounts), and (iii) in the case of any such assignment resulting from
a claim for compensation under Section 2.07 or payments required to be made
pursuant to Section 2.14, such assignment will result in a reduction in
such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver
by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.14 Extension.
(a) Subject to the provisions of this Section, the Borrower may extend
the Maturity Date of the Loans one (1) time for one (1) year by giving
written request therefor (the "Extension Request") to the Administrative
Agent of the Borrower's desire to extend such term, at least sixty (60),
but no more than one hundred twenty (120), days prior to the Maturity Date.
(b) If the Maturity Date is extended, all of the other terms and
conditions of this Agreement and the other Loan Documents (including
interest payment dates) shall remain in full force and effect and
unmodified, except as expressly provided for herein. The extension of the
Maturity Date is subject to the satisfaction of each of the following
additional conditions:
(i) The representations and warranties of each Credit Party set
forth in this Agreement or any other Loan Document to which such
Credit Party is a signatory shall be true and correct in all material
respects on the date that the Extension Request is given to the
Administrative Agent and on the first day of the extension (except to
the extent such representations and warranties relate to a specified
date);
(ii) no Default or Event of Default has occurred and is
continuing on the date on which the Borrower gives the Administrative
Agent the Extension Request or on the first day of the extension;
(iii) the Borrower shall be in compliance with all of the
financial covenants set forth in Article V hereof both on the date on
which the Extension Request is given to the Administrative Agent and
on the first day of the extension;
(iv) the Borrower shall have paid to the Administrative Agent all
amounts then due and payable to any of the Lenders, and the
Administrative Agent under the Loan Documents, including the extension
fee described in Section 2.06(b) hereof;
(v) the Borrower shall pay for any and all reasonable
out-of-pocket costs and expenses, including, reasonable attorneys'
fees and disbursements, incurred by the Administrative Agent in
connection with or arising out of the extension of the Maturity Date;
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(vi) no change in the business, assets, management, operations or
financial condition of any Credit Party shall have occurred since the
most recent funding of any Loan, which change, in the judgment of the
Administrative Agent, will have or is reasonably likely to have a
Material Adverse Effect;
(vii) the Borrower shall execute and deliver to Administrative
Agent such other documents, financial statements, instruments,
certificates, opinions of counsel, Title Insurance Policy
endorsements, reports, or amendments to the Loan Documents as the
Administrative Agent shall reasonably request regarding the Credit
Parties as shall be necessary to effect such extension; and
(viii) a written agreement evidencing the extension is signed by
the Administrative Agent, the Lenders, the Credit Parties and any
other Person to be charged with compliance therewith, which agreement
such parties agree to execute if the extension conditions set forth
above have been satisfied.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders and the Administrative
Agent that:
SECTION 3.01 Organization; Powers.
Each Credit Party is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02 Authorization; Enforceability.
The Transactions are within the corporate, partnership or limited liability
company powers (as applicable) of the respective Credit Parties and have been
duly authorized by all necessary corporate, partnership or limited liability
company action. This Agreement and the Loan Documents have been duly executed
and delivered by each Credit Party which is a party thereto and constitute the
legal, valid and binding obligation of each such Person, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03 Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of any Credit Party or any of the Borrower's
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Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any Credit Party or any of the Borrower's Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by any Credit
Party or any of the Borrower's Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of any Credit Party or any of
the Borrower's Subsidiaries, except pursuant to the Pledge.
SECTION 3.04 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders financial
statements (i) as of and for the fiscal year ended December 31, 2004 and
the fiscal quarter ended September 30, 2005, reported on by Deloitte &
Touche, LLP, independent public accountants, for the predecessor entities
for EDR, EDR Athens I, LLC, EDR Tallahassee I, LLC, and EDR C Station, LLC,
and (ii) combined statements of certain revenues and expenses for the
fiscal quarter and the portion of the fiscal year ended September 30, 2005,
for the predecessor entities for EDR Tallahassee Limited Partnership, EDR
Tharpe Limited Partnership and EDR Lawrence Limited Partnership. Such
financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii)
above.
(b) Since September 30, 2005, no event has occurred which could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.05 Properties.
(a) Subject to Liens permitted by Section 6.02, each of the Borrower
and its Subsidiaries has title to, or valid leasehold interests in, all its
real and personal property material to its business, except for minor
defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to the Borrower's business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(c) All components of all improvements included within the Real
Property owned or leased, as lessee, by any Credit Party, including,
without limitation, the roofs and structural elements thereof and the
heating, ventilation, air conditioning, plumbing, electrical, mechanical,
sewer, waste water, storm water, paving and parking equipment, systems and
facilities included therein, are in good working order and repair, subject
to such exceptions which are not reasonably likely to have, in the
aggregate, a Material
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Adverse Effect. All water, gas, electrical, steam, compressed air,
telecommunication, sanitary and storm sewage lines and systems and other
similar systems serving the Real Property owned or leased by any Credit
Party are installed and operating and are sufficient to enable the Real
Property to continue to be used and operated in the manner currently being
used and operated, and no Credit Party has any knowledge of any factor or
condition that reasonably could be expected to result in the termination or
material impairment of the furnishing thereof, subject to such exceptions
which are not likely to have, in the aggregate, a Material Adverse Effect.
No improvement or portion thereof is dependent for its access, operation or
utility on any land, building or other improvement not included in the Real
Property owned or leased by the Borrower or its Subsidiaries, other than
for access provided pursuant to a recorded easement or other right of way
establishing the right of such access subject to such exceptions which are
not likely to have, in the aggregate, a Material Adverse Effect.
(d) All franchises, licenses, authorizations, rights of use,
governmental approvals and permits (including all certificates of occupancy
and building permits) required to have been issued by Governmental
Authority to enable all Real Property owned or leased by Borrower or any of
its Subsidiaries to be operated as then being operated have been lawfully
issued and are in full force and effect, other than those which the failure
to obtain in the aggregate could not be reasonably expected to have a
Material Adverse Effect. No Credit Party is in violation of the terms or
conditions of any such franchises, licenses, authorizations, rights of use,
governmental approvals and permits, which violation would reasonably be
expected to have a Material Adverse Effect.
(e) None of the Credit Parties has received any notice or has any
knowledge, of any pending, threatened or contemplated condemnation
proceeding affecting any Real Property owned or leased by Borrower or any
of its Subsidiaries or any part thereof, or any proposed termination or
impairment of any parking at any such owned or leased Real Property or of
any sale or other disposition of any Real Property owned or leased by
Borrower or any of its Subsidiaries or any part thereof in lieu of
condemnation, which in the aggregate, are reasonably likely to have a
Material Adverse Effect.
(f) Except for events or conditions not reasonably likely to have, in
the aggregate, a Material Adverse Effect, (i) no portion of any Real
Property owned or leased by Borrower or any of its Subsidiaries has
suffered any material damage by fire or other casualty loss which has not
heretofore been completely repaired and restored to its condition prior to
such casualty, and (ii) no portion of any Real Property owned or leased by
Borrower or any of its Subsidiaries is located in a special flood hazard
area as designated by any federal Government Authorities or any area
identified by the insurance industry or other experts acceptable to the
Administrative Agent as an area that is a high probable earthquake or
seismic area, except as set forth on Schedule 3.05(f).
(g) There are no Persons operating or managing any Real Property other
than the Borrower, the Management Company, and Place Management Group, LLC
which manages only the thirteen (13) properties purchased from Place
Properties, L.P., pursuant to (i) the management agreements delivered to
Administrative Agent as of the Effective
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Date, and (ii) such other management agreements in form and substance
reasonably satisfactory to the Administrative Agent. To Borrower's
knowledge, except as disclosed on the Current Survey no improvement or
portion thereof, or any other part of any Real Property, is dependent for
its access, operation or utility on any land, building or other improvement
not included in the Real Property owned or leased by the Borrower or its
Subsidiaries, other than for access provided pursuant to a recorded
easement or other right of way establishing the right of such access.
SECTION 3.06 Intellectual Property.
To the knowledge of each Credit Party, such Credit Party owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business, and the use thereof by such
Credit Party does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. To the knowledge
of each Credit Party, there are no material slogans or other advertising
devices, projects, processes, methods, substances, parts or components, or other
material now employed, or now contemplated to be employed, by any Credit Party
with respect to the operation of any Real Property, and no claim or litigation
regarding any slogan or advertising device, project, process, method, substance,
part or component or other material employed, or now contemplated to be employed
by any Credit Party, is pending or threatened, the outcome of which could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.07 Litigation and Environmental Matters.
(a) Except as set forth in Schedule 3.07 attached hereto, there are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting any Credit Party or any of the Borrower's Subsidiaries
(i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve this Agreement or the Transactions.
(b) Except with respect to any other matters that, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect:
(i) to the knowledge of the Credit Parties, all Real Property
leased or owned by Borrower or any of its Subsidiaries is free from
contamination by any Hazardous Material, except to the extent such
contamination could not reasonably be expected to cause a Material
Adverse Effect;
(ii) to the knowledge of the Credit Parties, the operations of
Borrower and its Subsidiaries, and the operations at the Real Property
leased or owned by Borrower or any of its Subsidiaries are in
compliance with all applicable Environmental Laws, except to the
extent such noncompliance could not reasonably be expected to cause a
Material Adverse Effect;
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(iii) neither the Borrower nor any of its Subsidiaries have known
liabilities with respect to Hazardous Materials and, to the knowledge
of each Credit Party, no facts or circumstances exist which could
reasonably be expected to give rise to liabilities with respect to
Hazardous Materials, in either case, except to the extent such
liabilities could not reasonably be expected to have a Material
Adverse Effect;
(iv) (A) the Borrower and its Subsidiaries and all Real Property
owned or leased by Borrower or its Subsidiaries have all Environmental
Permits necessary for the operations at such Real Property and are in
compliance with such Environmental Permits; (B) there are no legal
proceedings pending nor, to the knowledge of any Credit Party,
threatened to revoke, or alleging the violation of, such Environmental
Permits; and (C) none of the Credit Parties have received any notice
from any source to the effect that there is lacking any Environmental
Permit required in connection with the current use or operation of any
such properties, in each case, except to the extent the nonobtainment
or loss of an Environmental Permit could not reasonably be expected to
have a Material Adverse Effect;
(v) neither the Real Property currently leased or owned by
Borrower nor any of its Subsidiaries, nor, to the knowledge of any
Credit Party, (x) any predecessor of any Credit Party, nor (y) any of
Credit Parties' Real Property owned or leased in the past, nor (z) any
owner of Real Property leased or operated by Borrower or any of its
Subsidiaries, are subject to any outstanding written order or
contract, including Environmental Liens, with any Governmental
Authority or other Person, or to any federal, state, local, foreign or
territorial investigation of which a Credit Party has been given
notice respecting (A) Environmental Laws, (B) Remedial Action, (C) any
Environmental Claim; or (D) the Release or threatened Release of any
Hazardous Material, in each case, except to the extent such written
order, contract or investigation could not reasonably be expected to
have a Material Adverse Effect;
(vi) none of the Credit Parties are subject to any pending legal
proceeding alleging the violation of any Environmental Law nor, to the
knowledge of each Credit Party, are any such proceedings threatened,
in either case, except to the extent any such proceedings could not
reasonably be expected to have a Material Adverse Effect;
(vii) neither the Borrower nor any of its Subsidiaries nor, to
the knowledge of each Credit Party, any predecessor of any Credit
Party, nor to the knowledge of each Credit Party, any owner of Real
Property leased by Borrower or any of its Subsidiaries, have filed any
notice under federal, state or local, territorial or foreign law
indicating past or present treatment, storage, or disposal of or
reporting a Release of Hazardous Material into the environment, in
each case, except to the extent such Release of Hazardous Material
could not reasonably be expected to have a Material Adverse Effect;
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(viii) none of the operations of the Borrower or any of its
Subsidiaries or, to the knowledge of each Credit Party, of any owner
of premises currently leased by Borrower or any of its Subsidiaries or
of any tenant of premises currently leased from Borrower or any of its
Subsidiaries, involve or previously involved the generation,
transportation, treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Part 261.3 (in effect as of the date of this
Agreement) or any state, local, territorial or foreign equivalent, in
violation of Environmental Laws, except to the extent the same could
not readily be expected to have a Material Adverse Effect; and
(ix) to the knowledge of the Credit Parties, there is not now,
nor has there been in the past (except, in all cases, to the extent
the existence thereof could not reasonably be expected to have a
Material Adverse Effect), on, in or under any Real Property leased or
owned by Borrower or any of its Subsidiaries, or any of their
predecessors (A) any underground storage tanks or surface tanks, dikes
or impoundments (other than for surface water); (B) any friable
asbestos-containing materials; (C) any polychlorinated biphenyls; or
(D) any radioactive substances other than naturally occurring
radioactive material.
SECTION 3.08 Compliance with Laws and Agreements.
Each of the Credit Parties is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.09 Investment and Holding Company Status.
Neither any of the Credit Parties nor any of the Borrower's Subsidiaries is
(a) an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.10 Taxes.
Each Credit Party and each of the Borrower's Subsidiaries has timely filed
or caused to be filed all Tax returns and reports required to have been filed
and has paid or caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which such Person has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11 ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events for which liability is
reasonably expected to occur,
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could reasonably be expected to result in a Material Adverse Effect. The
Borrower does not have any Plans as of the date hereof. As to any future Plan
the present value of all accumulated benefit obligations under each Plan (based
on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) will not exceed the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) will not exceed the fair market value of
the assets of all such underfunded Plans.
SECTION 3.12 Disclosure.
The Borrower has disclosed or made available to the Lenders all agreements,
instruments and corporate or other restrictions to which it, any other Credit
Party, or any of its Subsidiaries is subject, and all other matters known to it,
that, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. Neither the Confidential Information Memorandum dated March 2006
prepared by the Administrative Agent in conjunction with the Borrower, nor any
of the reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.13 Insurance.
Borrower has provided to Administrative Agent an insurance schedule which
accurately sets forth, in all material respects, as of the Effective Date all
insurance policies and programs currently in effect with respect to the assets
and business of Borrower and its Subsidiaries, specifying for each such policy
and program, (i) the amount thereof, (ii) the risks insured against thereby,
(iii) the name of the insurer and each insured party thereunder, (iv) the policy
or other identification number thereof and (v) the expiration date thereof. Such
insurance policies and programs (or such other similar policies as are permitted
pursuant to Section 5.06) are currently in full force and effect, and, together
with payment by the insured of scheduled deductible payments, are in amounts
sufficient to cover the replacement value of the respective assets of the
Borrower and its Subsidiaries.
SECTION 3.14 Margin Regulations.
The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board), and no proceeds of the Loans will be used to purchase or
carry any margin stock.
SECTION 3.15 Subsidiaries; REIT Qualification.
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As of the Effective Date, the Borrower has only the Subsidiaries listed on
Schedule 3.15 attached hereto. The Borrower and each of the Borrower's
Subsidiaries, other than Allen & O'Hara Education Services, Inc., is a
"qualified REIT subsidiary" under Section 856 of the Code.
ARTICLE IV
Conditions
SECTION 4.01 Effective Date.
The obligations of the Lenders to make the Loans hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each Credit Party either (i) a counterpart of this Agreement and all other
Loan Documents to which it is party signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of each such Loan
Document other than the Notes) that such party has signed a counterpart of
the Loan Documents, together with copies of all Loan Documents.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Bass, Berry & Sims PLC, counsel for the Borrower and
the Guarantor, and such other counsel as the Administrative Agent may
approve, covering such matters relating to the Credit Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Credit Parties, the authorization of the Transactions and any other legal
matters relating to the Credit Parties, this Agreement or the Transactions,
all in form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a Compliance
Certificate, dated the date of this Agreement and signed by a Financial
Officer of EDR, in form and substance satisfactory to the Administrative
Agent.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received copies of all other
Loan Documents.
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The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
ARTICLE V
Affirmative Covenants
Until the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01 Financial Statements; Ratings Change and Other Information.
The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Parent,
the Borrower's and the Parent's audited consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of
the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by Deloitte
& Touche LLP or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
the Parent and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent, the Borrower's and the Parent's
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Parent and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes, and (ii) a
property report with a list of all Real Property acquired by the Borrower
or any of its Subsidiaries since the last quarterly property report and
summary operating information for each project, including the Net Operating
Income of each property;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of EDR (the
"Compliance Certificate") in the form of Exhibit B attached hereto;
(d) promptly after the same become publicly available for Forms 10-K
and 10-Q described below, and upon written request for items other than
Forms 10-K and 10-Q described below, copies of all periodic and other
reports, proxy statements and other
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materials filed by the Parent, the Borrower or any Subsidiary with the
Securities and Exchange Commission (including registration statements and
reports on Form 10-K, 10-Q and 8-K (or their equivalents)), or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Parent or the Borrower to its shareholders generally, as the case may be;
(e) within thirty (30) days after the beginning of each fiscal year, a
current operating budget of the Borrower and its Subsidiaries (based on the
Borrower's good faith estimates and projections) for that fiscal year,
including projected sources and uses of funds (including dividend and debt
payments); and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any
Credit Party or any Subsidiary of the Borrower, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02 Financial Tests.
The Borrower shall have and maintain, on a consolidated basis in accordance
with GAAP, tested as of the close of each fiscal quarter:
(a) a Total Leverage Ratio no greater than seventy percent (70%) at
all times;
(b) commencing on the Measurement Date, an Interest Coverage Ratio of
not less than 1.85:1.00 at all times;
(c) commencing on the Measurement Date, a Fixed Charge Coverage Ratio
of not less than 1.50:1.00 at all times;
(d) a Tangible Net Worth of at least $407,770,000.00, plus
seventy-five percent (75%) of the net proceeds (gross proceeds less
reasonable and customary costs of sale and issuance paid to Persons not
Affiliates of any Credit Party) received by the Borrower at any time from
the issuance of stock of the Parent after the date of this Agreement, at
all times;
(e) the ratio of (i) the sum of the Borrower's Indebtedness and the
Parent's Indebtedness that bears interest at a varying rate of interest or
that does not have the interest rate effectively fixed pursuant to a
Hedging Agreement, to (ii) the sum of the Borrower's Indebtedness and the
Parent's Indebtedness, shall not exceed thirty percent (30%).
SECTION 5.03 Notices of Material Events.
The Borrower will furnish to the Administrative Agent and each Lender
written notice of the following promptly after it becomes aware of same (unless
specific time is set forth below):
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(a) the occurrence of any Default;
(b) within five (5) Business Days after the filing or commencement of
any action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting any Credit Party or any Affiliate thereof
that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) within five (5) Business Days after the occurrence of any ERISA
Event that, alone or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000.00; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of EDR setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
At the Administrative Agent's option, after the happening of any of the
events listed in clauses (a), (b) or (d) above, the Administrative Agent may
obtain, or cause the Borrower to obtain, an updated Appraisal for the property
giving rise to such events, all at the Borrower's expense.
SECTION 5.04 Existence; Conduct of Business.
The Borrower will, and will cause each of its Subsidiaries to, do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03. Each Person that is a Borrower must at all times
be a wholly owned Subsidiary of EDR.
SECTION 5.05 Payment of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, pay its
obligations, including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.06 Maintenance of Properties; Insurance.
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(a) The Borrower will, and will cause each of its Subsidiaries to, (i)
keep and maintain all property material to the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and (ii)
maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are set forth in the
schedule provided pursuant to Section 3.13, with Administrative Agent named
as loss payee and a beneficiary of such insurance on substantially similar
policies and programs as are acceptable to Administrative Agent.
(b) The Borrower shall maintain the following insurance coverages for
each of the Properties in the Pool:
(i) An all-risk policy of permanent property insurance insuring
the Mortgaged Property against all risks of any kind or character
except those permitted by the Administrative Agent in writing to be
excluded from coverage thereunder.
(ii) A boiler and machinery insurance policy covering loss or
damage to all portions of the Mortgaged Property comprised of
air-conditioning and heating systems, other pressure vessels,
machinery, boilers or high pressure piping.
(iii) An all-risk policy of insurance covering loss of earnings
and/or rents from the Mortgaged Property in the event that the
Mortgaged Property is not available for use or occupancy due to
casualty, damage or destruction required to be covered by the policies
of insurance described in (i) and (ii) above.
(iv) Commercial general liability, auto liability, umbrella or
excess liability and worker's compensation insurance against claims
for bodily injury, death or property damage occurring on, in or about
the Mortgaged Property in an amount and containing terms acceptable to
the Administrative Agent.
(v) Such other insurance against other insurable hazards, risks
or casualties which at the time are commonly insured against in the
case of owners and premises similarly situated, due regard being given
to the financial condition of the Borrower, the height and type of the
Mortgaged Property, its construction, location, use and occupancy.
(vi) All required insurance will be written on forms acceptable
to the Administrative Agent and by companies having a Best's Insurance
Guide Rating of not less than A or A+ and which are otherwise
acceptable to the Administrative Agent.
(c) The Borrower will pay and discharge all taxes, assessments,
maintenance charges, permit fees, impact fees, development fees, capital
repair charges, utility reservations and standby fees and all other similar
impositions of every kind and character charged, levied, assessed or
imposed against any interest in any of the
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Mortgaged Property owned by it, as they become payable and before they
become delinquent. The Borrower shall furnish receipts evidencing proof of
such payment to the Administrative Agent promptly after payment and before
delinquency.
SECTION 5.07 Books and Records; Inspection Rights.
(a) The Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its
business and activities.
(b) The Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any
Lender, upon reasonable prior notice and subject to rights of tenants, to
visit and inspect its properties, to examine and make extracts from its
books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and
as often as reasonably requested.
SECTION 5.08 Compliance with Laws.
The Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.09 Use of Proceeds.
The proceeds of the Loans will be used for acquisition, development and
enhancement of Real Property, debt refinancing, capital improvements and working
capital. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for financing, funding or completing the hostile acquisition of
publicly traded Persons or for any purpose that entails a violation of any of
the Regulations of the Board, including Regulations U and X.
SECTION 5.10 Fiscal Year.
Borrower shall maintain as its fiscal year the twelve (12)-month period
ending on December 31 of each year.
SECTION 5.11 Environmental Matters.
(a) Borrower shall comply and shall cause each of its Subsidiaries and
each Real Property owned or leased by such parties to comply in all
material respects with all applicable Environmental Laws currently or
hereafter in effect, except to the extent noncompliance could not
reasonably be expected to have a Material Adverse Effect.
(b) If the Administrative Agent or the Required Lenders at any time
have a reasonable basis to believe that there may be a material violation
of any Environmental Law related to any Real Property owned or leased by
Borrower or any of its Subsidiaries,
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or Real Property adjacent to such Real Property, which could reasonably be
expected to have a Material Adverse Effect, then Borrower agrees, upon
request from the Administrative Agent, to provide the Administrative Agent,
at the Borrower's expense, with such reports, certificates, engineering
studies or other written material or data as the Administrative Agent or
the Required Lenders may reasonably require so as to reasonably satisfy the
Administrative Agent and the Required Lenders that any Credit Party or Real
Property owned or leased by them is in material compliance with all
applicable Environmental Laws.
(c) Borrower shall, and shall cause each of its Subsidiaries to, take
such Remedial Action or other action as required by Environmental Law or
any Governmental Authority.
SECTION 5.12 Further Assurances.
At any time upon the request of the Administrative Agent, Borrower will,
promptly and at its expense, execute, acknowledge and deliver such further
documents and perform such other acts and things as the Administrative Agent may
reasonably request to evidence the Loans made hereunder and interest thereon in
accordance with the terms of this Agreement.
SECTION 5.13 Parent Covenants.
The Parent will:
(a) maintain at least one class of common shares of the Parent having
trading privileges on the New York Stock Exchange;
(b) own, directly or indirectly, all of the general partner interests
in EDR and at least fifty-one percent (51%) of (i) the shares of beneficial
interest of EDR, and (ii) each class of security issued by EDR with the
power to select the general partner of EDR;
(c) maintain management and control of EDR;
(d) conduct substantially all of its operations through EDR and one or
more of EDR's Subsidiaries;
(e) comply with all Legal Requirements to maintain, and will at all
times elect, qualify as and maintain, its status as a real estate
investment trust under Section 856(c)(i) of the Code, and
(f) promptly contribute to EDR the net proceeds of any stock sales or
debt offerings.
ARTICLE VI
Negative Covenants
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Until the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, the Borrower covenants and agrees with the
Lenders that:
SECTION 6.01 Sale/Leaseback.
The Borrower will not, and will not permit any Subsidiary to, enter into a
sale/leaseback, or similar transaction, for any of its Real Property, with the
exception of the lease of the thirteen (13) properties acquired from Place
Properties, L.P. by the Borrower to Place Properties, L.P.
SECTION 6.02 Liens.
The Borrower will not create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances; and
(b) any Lien on any property or asset of the Borrower existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien
shall not apply to any other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations (whether
present or future) set forth in the governing loan documents, as of the
date hereof and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof.
SECTION 6.03 Fundamental Changes.
The Borrower will not, and will not permit any Subsidiary to:
(a) merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease
or otherwise dispose of (in one transaction or in a series of transactions)
all or substantially all of the assets of the Borrower or all or
substantially all of the stock of its Subsidiaries (in each case, whether
now owned or hereafter acquired), or liquidate or dissolve, except that, if
at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing (i) any Person may merge into, or
consolidate with, EDR in a transaction in which EDR is the surviving
corporation, (ii) any Person not a Credit Party may merge into, or
consolidate with, any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary not a Credit Party may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to
another Subsidiary, (iv) any Subsidiary not a Credit Party may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, (v) any Subsidiary which is a Credit Party
may merge into (or consolidate with) or liquidate or dissolve into, any
other Subsidiary which is a Credit Party, and (vi) any Subsidiary which is
a Credit Party may sell, transfer, lease or otherwise dispose of its assets
to Borrower or to any other Subsidiary which is a Credit Party; provided
that any such merger involving a Person that is not a wholly owned
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Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.04.
(b) sell, transfer, lease or otherwise dispose of any of its assets to
a Person other than pursuant to clause (a) above if (i) the Value of the
assets disposed of in any twelve (12) month period exceeds twenty-five
percent (25%) of the Value of the Borrower's and its Subsidiaries' Real
Property other than Assets Under Development or undeveloped land, before
giving effect to such dispositions, or (ii) the assets disposed of in any
twelve (12) month period contributed or made up more than twenty-five
percent (25%) of the Borrower's Net Operating Income for such twelve (12)
month period.
(c) engage to any material extent in any business other than the
ownership, development, operation and management of student housing
communities and businesses reasonably related thereto, except as allowed by
Section 6.04(e).
SECTION 6.04 Investments, Loans, Advances and Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person that
was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) Real Property operated as student housing communities;
(c) investments in Unconsolidated Affiliates so long as the aggregate
amount of such investments described in this clause (c) does not exceed
twenty percent (20%) of the Total Asset Value after giving effect to such
investments;
(d) undeveloped land, so long as the aggregate Historical Value of
such land does not exceed ten percent (10%) of Total Asset Value, after
giving effect to such investments;
(e) investments not related to the ownership, development, operation
and management of student housing communities, so long as the value of
same, determined in accordance with this Agreement, do not exceed ten
percent (10%) of Total Asset Value, after giving effect to such
investments;
(f) Assets Under Development, so long as the aggregate Historical
Value thereof does not exceed twenty percent (20%) of the Total Asset Value
after giving effect to such investments; and
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(g) mergers, consolidations and other transactions permitted under
Section 6.03, so long as same do not cause the Borrower to be in violation
of any provision of this Section 6.04.
In addition to the foregoing, the aggregate value of the investments
described in clauses (c), (d), (e) and (f), above shall not exceed thirty
percent (30%) of Total Asset Value after giving effect to such investments. The
investments described above may be purchased or acquired, directly or
indirectly, through partnerships, joint ventures, or otherwise. The calculations
in this Section will be made without duplication if an investment is within more
than one category described in this Section.
SECTION 6.05 Hedging Agreements.
The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any Hedging Agreement, other than Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary is exposed in the conduct of its business or the management of
its liabilities.
SECTION 6.06 Restricted Payments.
The Parent will not, and will not permit any of its Subsidiaries to,
declare or make, or agree to pay or make, directly or indirectly, during any
calendar quarter, any Restricted Payment, except that any of the following
Restricted Payments are permitted: (a) Restricted Payments in an amount equal to
or less than a per share rate of $1.20; (b) Restricted Payments by the Parent
required to comply with Section 5.13(e); or (c) dividends or distributions
declared and paid ratably by Subsidiaries to Borrower with respect to their
capital stock or equity interest.
Notwithstanding the foregoing, the amount of Restricted Payments permitted
under subsection 6.06(a) may be increased as long as either of the following
conditions is met: (a) after giving effect to the increased Restricted Payment,
the Total Leverage Ratio shall remain less than or equal to 60%; or (b) the
increased Restricted Payment, when added to all Restricted Payments made during
the 3 immediately preceding calendar quarters, does not exceed (i) 100% of Funds
From Operations for the applicable period through and including December 31,
2006, and (ii) 95% of Funds From Operations for the applicable period
thereafter.
SECTION 6.07 Transactions with Affiliates.
The Borrower will not, and will not permit any of its Subsidiaries to,
sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) transactions between or among the Borrower and
its wholly owned Subsidiaries not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.06.
SECTION 6.08 Parent Negative Covenants.
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The Parent will not (a) own any Property other than the ownership interests
of EDR and other assets with no more than $10,000,00.00 in value; (b) give or
allow any Lien on the ownership interests of EDR; (c) create, incur, suffer or
permit to exist, or assume or guarantee, directly or indirectly, contingently or
otherwise, or become or remain liable with respect to any Indebtedness if the
aggregate of such Indebtedness and the Indebtedness of the Borrower would
violate Section 5.02 if such aggregate Indebtedness is treated as the Borrower's
Indebtedness or (d) engage to any material extent in any business other than the
ownership, development, operation and management of student housing communities.
SECTION 6.09 Restrictive Agreements.
With the exception of any prohibition arising under the Revolving Loan
Documents, the Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of the Borrower or any Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iii) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness or Liens permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness and
(iv) clause (a) of the foregoing shall not apply to customary provisions in
leases restricting the assignment thereof.
SECTION 6.10 Indebtedness.
Neither the Parent, the Borrower nor any Guarantor shall, without the prior
written consent of the Required Lenders, create, incur, assume, guarantee or be
or remain liable, contingently or otherwise with respect to any Indebtedness on
a recourse basis, except: (a) Indebtedness under this Agreement; (b)
Indebtedness incurred in connection with the construction or renovation of Real
Property, which Indebtedness is approved by the Administrative Agent, such
approval not to be unreasonably withheld; (c) Indebtedness under the Revolving
Loan, including any amendment or modification thereof; (d) Indebtedness to
Administrative Agent; and (e) Indebtedness whose recourse is solely for
so-called "bad-boy" acts, including without limitation, (i) failure to account
for a tenant's security deposits, if any, for rent or any other payment
collected by a borrower from a tenant under the lease, all in accordance with
the provisions of any applicable loan documents, (ii) fraud or a material
misrepresentation made by a Borrower or any Guarantor, or the holders of
beneficial or ownership interests in such Borrower or any Guarantor, in
connection with the financing evidenced by the applicable loan documents; (iii)
any attempt by a Borrower or any Guarantor to divert or otherwise cause to be
diverted any amounts payable to the applicable lender in accordance with the
applicable loan documents; (iv) the misappropriation or misapplication of any
insurance proceeds or
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condemnation awards relating to the Mortgaged Property; (v) voluntary or
involuntary bankruptcy by a Borrower or any Guarantor; and (vi) any
environmental matter(s) affecting any Mortgaged Property which is introduced or
caused by a Borrower or any Guarantor or any holder of a beneficial or ownership
interest in a Borrower or any Guarantor.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Credit Party shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under any Loan Documents, when and as the same shall
become due and payable, and such failure shall continue unremedied for a
period of over three Business Days (such three Business Day period
commencing after written notice from the Administrative Agent as to any
such fee);
(c) any representation or warranty made or deemed made by or on behalf
of any Credit Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in connection with this Agreement or any amendment or modification hereof
or waiver hereunder, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Article V or VI other than Sections
5.04, 5.05, 5.06, 5.07(a), 5.08, and 5.11;
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of over 30 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given
at the request of any Lender) and if such default is not cureable within
thirty (30) days and the Credit Party is diligently pursuing cure of same,
the cure period may be extended for 30 days (for a total of 60 days after
the original notice from the Administrative Agent) upon written request
from the Borrower to the Administrative Agent;
(f) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without
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the giving of notice, the lapse of time or both) the holder or holders of
any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any Credit Party or any Subsidiary of the Borrower or
its debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Credit
Party or any Subsidiary of the Borrower or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(h) any Credit Party or any Subsidiary of the Borrower shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for such Person or for a substantial part of its assets, (iv) file
an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(i) any Credit Party or any Subsidiary of the Borrower shall become
unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against any Credit Party,
any Subsidiary of the Borrower or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of such
Person to enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000;
(l) the Guaranty of the Loan provided by Guarantor shall for any
reason terminate or cease to be in full force and effect; or
(m) a Change in Control shall occur;
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then, and in every such event (other than an event described in clause (g) or
(h) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take some or all of the following actions, at
the same or different times: (i) declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared to
be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, and (ii) exercise any other rights or remedies
provided under this Agreement or any other Loan Document, or any other right or
remedy available by law or equity; and in case of any event described in clause
(g) or (h) of this Article, the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Credit Party
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be
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deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, with the approval of Borrower (provided
no Default has occurred and is continuing), which approval shall not be
unreasonably withheld, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in Boston, Massachusetts, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit
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of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. 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 from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices.
Except in the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it in care of EDR at 530 Oak Court Drive,
Suite 300, Memphis, Tennessee 38117, Attention: Randall H. Brown (Telephone
No. (901) 259-2507 and Telecopy No. (901) 259-2594));
(b) if to the Administrative Agent, to KeyBank, National Association,
225 Franklin Street, Boston, Massachusetts, Attention: Mr. Gregory W. Lane
(Telephone No. (617) 385-6212 and Telecopy No. (617) 385-6293); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth on the signature pages of this Agreement, or as provided to
Borrower in writing by the Administrative Agent or the Lender.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given (i) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate confirmation is received (or if such day is not a
Business Day, on the next Business Day); (ii) if given by mail (return receipt
requested), on the earlier of receipt or three (3) Business Days after such
communication is deposited in the mail with first class postage prepaid,
addressed as aforesaid; or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article II shall not be effective until received.
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SECTION 9.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, or any Lender in
exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Administrative Agent, and the Lenders hereunder and under
any other Loan Document are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Borrower therefrom shall
in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Required Lenders or by the
Borrower and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.12(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage
of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the written
consent of each Lender, or (vi) release any Credit Party from its
obligations under the Loan Documents or release any Collateral, without the
written consent of each Lender; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent as the case may be.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions
hereof
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(whether or not the transactions contemplated hereby or thereby shall be
consummated), and (ii) all out-of-pocket expenses incurred by the
Administrative Agent, or any Lender, including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent, or any
Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or
in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent, and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations hereunder
or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Materials on
or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses resulted from
the gross negligence or willful misconduct of such Indemnitee as determined
by a court of law in a final non-appealable judgment.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative
Agent such Lender's Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
ten days after written demand therefor.
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SECTION 9.04 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it) with the prior
written consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000.00 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500.00; and
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(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved
Fund" has the following meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.09,
2.10, 2.11 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
9.04 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrower, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
-55-
(c) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, 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 this Agreement. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b)
that affects such Participant. Subject to paragraph (d) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits
of Sections 2.09, 2.10 and 2.11 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.12(c) as though
it were a Lender.
(d) A Participant shall not be entitled to receive any greater payment
under Section 2.09 or 2.11 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.11 unless the Borrower is notified of the participation sold
to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.11(e) as though it were a Lender.
(e) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to
a Federal Reserve Bank, and this Section shall not apply to any such pledge
or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 9.05 Survival.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the
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Administrative Agent, or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid. The provisions of
Sections 2.09, 2.10, 2.11 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans and the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness; Joint and Several.
(a) This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single
contract.
(b) This Agreement and any separate letter agreements with respect to
fees payable to the Administrative Agent constitute the entire contract
among the parties relating to the subject matter hereof and supersede any
and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.
(c) Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other
parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
(d) Each Person constituting the Borrower shall be bound jointly and
severally with one another to make, keep, observe and perform the
representations, warranties, covenants, agreements, obligations and
liabilities imposed by this Agreement and the other Loan Documents upon the
"Borrower."
(e) Each Borrower agrees that it shall never be entitled to be
subrogated to any of the Administrative Agent's or any Lender's rights
against any Credit Party or other Person or any collateral or offset rights
held by the Administrative Agent or the Lenders for payment of the Loans
until the full and final payment of the Loans and all other obligations
incurred under the Loan Documents and final termination of the Lenders'
obligations, if any, to make further advances under this Agreement or to
provide any other financial accommodations to any Credit Party. The value
of the consideration received and to be received by each Borrower is
reasonably worth at least as much as the liability and obligation of each
Borrower incurred or arising under the Loan Documents. Each Borrower has
determined that such liability and obligation may reasonably be expected to
substantially benefit each Borrower directly or indirectly. Each Borrower
has had full and complete access to the underlying papers relating to the
Loans and all of the
-57-
Loan Documents, has reviewed them and is fully aware of the meaning and
effect of their contents. Each Borrower is fully informed of all
circumstances which bear upon the risks of executing the Loan Documents and
which a diligent inquiry would reveal. Each Borrower has adequate means to
obtain from each other Borrower on a continuing basis information
concerning such other Borrower's financial condition, and is not depending
on the Administrative Agent or the Lenders to provide such information, now
or in the future. Each Borrower agrees that neither the Administrative
Agent nor any of the Lenders shall have any obligation to advise or notify
any Borrower or to provide any Borrower with any data or information
regarding any other Borrower.
SECTION 9.07 Severability.
Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender
and each of its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other obligations at any time owing by such Lender or Affiliate to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the state and
federal courts in Boston, Massachusetts and in New York, New York, and any
appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final
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judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that the Administrative Agent, or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 9.12 Confidentiality.
Each of the Administrative Agent, and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal
-59-
counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from any Credit Party relating to the Credit Party or
its business, other than any such information that is available to the
Administrative Agent, or any Lender on a nonconfidential basis prior to
disclosure by any Credit Party; provided that, in the case of information
received from any Credit Party after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13 Interest Rate Limitation.
If at any time there exists a maximum rate of interest which may be
contracted for, charged, taken, received or reserved by the Lenders in
accordance with applicable law (the "Maximum Rate"), then notwithstanding
anything herein to the contrary, at any time the interest applicable to any
Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed such Maximum Rate, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been paid in respect of such Loan but were not payable as result
of the operation of this Section shall be cumulated and the interest and Charges
payable to the Lenders in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by the Lenders. If, for any reason
whatsoever, the Charges paid or received on the Loans produces a rate which
exceeds the Maximum Rate, the Lenders shall credit against the principal of the
Loans (or, if such indebtedness shall have been paid in full, shall refund to
the payor of such Charges) such portion of said Charges as shall be necessary to
cause the interest paid on the Loans to produce a rate equal to the Maximum
Rate. All sums paid or agreed to be paid to the holders of the Loans for the
use, forbearance or detention of the Loans shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of this Agreement, so that the interest rate is uniform
throughout the full term of this Agreement. The provisions of this Section shall
control all agreements, whether now or hereafter existing and whether written or
oral, between the parties hereto. On each day, if any, that Texas law governs
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the maximum rate of interest which may be contracted for, charged, taken,
received or reserved by the Lenders, the Maximum Rate shall be the "weekly
ceiling" (as defined in Chapter 303 of the Texas Finance Code (the "Texas
Finance Code") as amended) for that day. The Administrative Agent may from time
to time, as to current and future balances, implement any other ceiling under
the Texas Finance Code by notice to the Borrower, if and to the extent permitted
by the Texas Finance Code. Without notice to the Borrower or any other person or
entity, the Maximum Rate, if any, shall automatically fluctuate upward and
downward as and in the amount by which such maximum nonusurious rate of interest
permitted by applicable law fluctuates.
SECTION 9.14 USA PATRIOT Act.
Each Lender hereby notifies the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
EDUCATION REALTY OPERATING PARTNERSHIP,
LP, a Delaware limited partnership
By: EDUCATION REALTY OP GP, INC., a
Delaware corporation, its General
Partner
By: /s/ Randall H. Brown
------------------------------------
Name: Randall H. Brown
----------------------------------
Title: Secretary
---------------------------------
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The Parent joins in the execution of this Agreement to evidence its
agreement to the provisions of Sections 5.01, 5.13, 6.06 and 6.08 of this
Agreement.
EDUCATION REALTY TRUST, INC.
By: /s/ Randall H. Brown
------------------------------------
Name: Randall H. Brown
----------------------------------
Title: Secretary and Treasurer
---------------------------------
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Signature page to Credit Agreement with Education Realty Operating
Partnership, LP
KEYBANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent,
By: /s/ Gregory W. Lane
------------------------------------
Gregory W. Lane
Vice President
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SCHEDULE 2.01
LENDER LOAN COMMITMENT
------ ---------------
(Percentage)
KeyBank, National Association $50,000,000.00
(100%)
1
SCHEDULE 3.05(F)
1. Earthquake or Seismic Area - None
2. Special Flood Hazard - Jefferson Commons in Lawrence, Kansas is in Special
Flood Hazard Area AE.
2
SCHEDULE 3.07
In June 2001, the United State Department of Justice, or DOJ, notified JPI
of an on-going investigation regarding possible violations of the ADA and the
FHAA at various residential properties developed by JPI, mostly multi-family
apartment communities. Of the 14 student housing communities the Borrower is
acquiring from JPI in the acquisition, one property is included in those
reviewed by the DOJ to date. The DOJ has reviewed the property plans for this
property but has not issued a report regarding its review. In October 2002, the
DOJ indicated that the investigations were being delayed for an undetermined
period of time. This investigation has not been resolved and, at this point, no
conclusion can be reached regarding what will be required to conclude it or
whether it will result in a dispute or legal proceedings with the DOJ.
Noncompliance with the ADA and the FHAA could result in the imposition of
injunctive relief, fines, awards of damages to private litigants or additional
capital expenditures to remedy such noncompliance. The Borrower is unable to
predict the outcome of the DOJ's investigation related to the JPI portfolio.
3
SCHEDULE 3.15
LIST OF SUBSIDIARIES
1. Education Realty OP Limited Partnership Trust
2. Education Realty OP GP, Inc.
3. Education Realty Operating Partnership, LP
4. Allen & O'Hara Education Services, Inc.
5. Allen & O'Hara Development Company, LLC
6. Education Realty Trust, LLC
7. EDR C Station, LLC
8. EDR BG GP, LLC
9. EDR BG, LP
10. EDR Clemson I GP, Inc.
11. EDR Clemson I Limited Partnership
12. EDR Tucson I, LLC
13. EDR Tallahassee I, LLC
14. EDR Athens I, LLC
15. EDR Lubbock, Inc.
16. EDR Lubbock, LLC
17. EDR Lubbock Limited Partnership
18. EDR Tallahassee, Inc.
19. EDR Tallahassee, LLC
20. EDR Tallahassee Limited Partnership
21. EDR Lawrence, Inc.
22. EDR Lawrence, LLC
23. EDR Lawrence Limited Partnership
24. EDR Columbus, Inc.
25. EDR Columbus, LLC
26. EDR Columbus Limited Partnership
27. EDR Columbia, Inc.
28. EDR Columbia, LLC
29. EDR Columbia Limited Partnership
30. EDR Western Michigan, Inc.
31. EDR Western Michigan, LLC
32. EDR Western Michigan Limited Partnership
33. EDR Wabash, Inc.
34. EDR Wabash, LLC
35. EDR Wabash Limited Partnership
36. EDR State College, Inc.
37. EDR State College, LLC
38. EDR Limpar, LLC
39. EDR State College Limited Partnership
40. EDR Stillwater, Inc.
41. EDR Stillwater, LLC
42. EDR Stillwater Limited Partnership
43. EDR Knoxville, Inc.
44. EDR Knoxville, LLC
45. EDR Knoxville Limited Partnership
46. EDR Tucson, Inc.
47. EDR Tucson, LLC
48. EDR Tucson Phase II Limited Partnership
49. EDR Tharpe, Inc.
50. EDR Tharpe, LLC
51. EDR Tharpe Limited Partnership
52. EDR Tampa, Inc.
53. EDR Tampa, LLC
54. EDR Tampa Limited Partnership
55. EDR Orlando, Inc.
56. EDR Orlando, LLC
57. EDR Orlando Limited Partnership
58. University Towers OP GP, LLC
59. University Towers Operating Partnership, LP
60. AOD/Raleigh Residence Hall, LLC
61. University Towers Building, LLC
62. University Towers Raleigh, LLC
63. University Towers Raleigh Services, LLC
64. EDR Oxford, LLC
65. EDR Cayce Manager, Inc.
66. EDR Cayce, LLC
67. EDR Murfreesboro, LLC
68. EDR Gainesville Limited Partnership
69. EDR Gainesville GP, LLC
70. EDR Auburn, LLC
71. EDR Clemson Place Limited Partnership
72. EDR Clemson Place GP, LLC
73. EDR Berkeley Place Limited Partnership
74. EDR Berkeley Place GP, LLC
75. Cape Place (DE), LLC
76. Clayton Place (DE), LLC
77. Jacksonville Place (DE), LLC
78. Macon Place (DE), LLC
79. Martin Place (DE), LLC
80. Murray Place (DE), LLC
81. River Place (DE), LLC
82. Troy Place (DE), LLC
83. Carrolton Place, LLC
84. Southern Place, LLC
85. Western Place, LLC
86. EDR Lease Holdings, LLC
4
SCHEDULE 5.12
POOL
1. Jefferson Commons - Tallahassee, Florida (Leon County)
2. Players Club Apartments - Tallahassee, Florida (Leon County)
3. Jefferson Pointe - Tallahassee, Florida (Leon County)
4. The Reserve At Athens - Athens, Georgia (Clarke County)
5. College Station - Augusta, Georgia (Richmond County)
6. Jefferson Commons - Lawrence, Kansas (Douglas County)
7. Campus Creek - Oxford, Mississippi (Lafayette County)
5
SCHEDULE 6.02
EXISTING LIENS
None
6
CREDIT AGREEMENT
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [identify Lender](1)]
3. Borrower: Education Realty Operating Partnership, LP and
certain of its Subsidiaries
- ----------
(1) Select as applicable
A-1
4. Administrative Agent: KeyBank, National Association, as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of March 30, 2006,
among Education Realty Operating Partnership, LP,
certain of its Subsidiaries, the Lenders parties
thereto, KeyBank, National Association, as
Administrative Agent, and the other agents parties
thereto
6. Assigned Interest:
Aggregate Amount of Amount of Percentage
Commitment/Loans for all Commitment/Loans Assigned of
Lenders Assigned Commitment/Loans(2)
- ------------------------ ---------------- -------------------
$__________ $__________ __________%
$__________ $__________ __________%
$__________ $__________ __________%
Effective Date: ______________________, 20____ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE
DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
- ----------
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
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ASSIGNEE
[NAME OF ASSIGNEE]
By:
------------------------------------
Title:
---------------------------------
[Consented to and](3) Accepted:
[KeyBank, National Association], as
Administrative Agent
By:
---------------------------------
Title:
------------------------------
[Consented to:](4)
[NAME OF RELEVANT PARTY]
By:
---------------------------------
Title:
------------------------------
- ----------
(3) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(4) To be added only if the consent of the Borrower and/or other parties is
required by the terms of the Credit Agreement.
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ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the
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Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
A-5
CREDIT AGREEMENT
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
[Date]
KeyBank, National Association
as Administrative Agent
225 Franklin Street
Boston, Massachusetts 02110
Attn: Mr. Gregory W. Lane
Re: Education Realty Operating Partnership. LP
Compliance Certificate for _______ through __________
Dear Ladies and Gentlemen:
This Compliance Certificate is made with reference to that certain
Credit Agreement dated as of ________________, 2006 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Education
Realty Operating Partnership, LP and certain of its Subsidiaries (collectively,
the "Borrower"), the financial institutions party thereto, as lenders, and
KeyBank, National Association., as Administrative Agent. All capitalized terms
used in this Compliance Certificate (including any attachments hereto) and not
otherwise defined in this Compliance Certificate shall have the meanings set
forth for such terms in the Credit Agreement. All Section references herein
shall refer to the Credit Agreement.
I hereby certify that I am the [chief financial officer] [chief
accounting officer] of Education Realty Operating Partnership, LP, and that I
make this Certificate on behalf of each Borrower. I further represent and
certify on behalf of the Borrower as follows as of the date of this Compliance
Certificate:
I have reviewed the terms of the Loan Documents and have made, or have
caused to be made under my supervision, a review in reasonable detail of
the transactions and consolidated and consolidating financial condition of
the Borrower and its Subsidiaries, during the accounting period (the
"Reporting Period") covered by the financial reports delivered simultaneous
herewith pursuant to Section 5.01[(a)][(b)], and that such review has not
disclosed the existence during or at the end of such Reporting Period (and
that I do not have knowledge of
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the existence as at the date hereof) of any condition or event which
constitutes a Default or Event of Default.(1)
Attached hereto as (x) Schedule A-1 is a list of the Real Property that
comprises the Pool and the Pool Value, and (y) Schedule A-2 is a list of
the Real Property assets that were identified as being in the Pool in the
last Compliance Certificate and that are no longer qualified to be in the
Pool as of the last day of the Reporting Period.
Attached hereto as (x) Schedule B-1 is a detailed calculation of Interest
Expense for the Reporting Period, which amount was $__________, and (y)
Schedule B-2 is a detailed calculation of Interest Expense, principal paid
and due and payable on Indebtedness, and cash dividends payable on the
Parent's preferred stock for the Reporting Period, which aggregated
$__________.
Attached hereto as Schedule C is a detailed calculation of EBITDA for the
Reporting Period, which amount was $__________.
As of the last day of the Reporting Period:
1. Interest Coverage Ratio
(a) EBITDA $___________
(b) Interest Expense $___________
(c) Interest Coverage Ratio(2) _____: 1.00
2. Fixed Charge Coverage Ratio Calculation:
(a) EBITDA $___________
(b) Capital Expenditure Reserve $___________
(attach quarterly average calculation)
(c) (a) - (b) $___________
(d) Principal paid and due and payable plus Interest
Expense plus cash dividends on preferred stock $___________
(e) Fixed Charge Coverage Ratio ((c) to (d))(3) _____: 1.00
3. Tangible Net Worth(4): $___________
- ----------
(1) Alternatively, if a Default or Event of Default existed or exists, specify
the nature and period of existence thereof and what action the Borrower or
any of its Subsidiaries has taken, is taking and proposes to take with
respect thereto.
(2) Pursuant to Section 5.02(b), must not be less than 1.85 to 1.00.
(3) Pursuant to Section 5.02(c), must not be less than 1.50 to 1.00.
(4) Pursuant to Section 5.02(d), must not be less than $____________, plus 75%
of the net proceeds of equity offerings after the date of the Credit
Agreement.
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4. Total Leverage Ratio Calculation:
(a) Indebtedness $___________
(b) Total Asset Value $___________
(c) Total Leverage Ratio(5) __________%
5. Varying Interest Rate Calculation:
(a) Indebtedness with a varying interest rate $___________
(b) Indebtedness $___________
(c) (a) to (b)(6) __________%
6. Asset Maintenance Calculation
(a) Value of Pool(7)
(attach list of each Property) $___________
7. Investment Limitations
(a) (i) Investments in Unconsolidated Affiliates $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(8) __________%
(b) (i) Investments in undeveloped land $__________
(ii) Total Asset Value $___________
(iii)(i) / (ii), expressed as a percentage(9) __________%
(c) (i) Investment in Assets Under Development $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(10) __________%
(d) (i) Investments in Real Property not constituting
student housing communities $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(11) __________%
(g) (i) Investments in undeveloped land, Unconsolidated
- ----------
(5) Pursuant to Section 5.02(a), cannot exceed seventy percent (70%).
(6) Pursuant to Section 5.02(e), must not exceed thirty percent (30%).
(7) Pursuant to Section 5.12(a), must not be less than $50,000,000.
(8) Pursuant to Section 6.04(c), cannot exceed twenty percent (20%) of the
Total Asset Value.
(9) Pursuant to Section 6.04(d), cannot exceed ten percent (10%) of Total Asset
Value.
(10) Pursuant to section 6.04(f), cannot exceed twenty percent (20%) of Total
Asset Value.
(11) Pursuant to Section 6.04(e), cannot exceed ten percent (10%) of Total Asset
Value.
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Affiliates, Assets Under Development and
non-student housing communities $___________
(ii) Total Asset Value $___________
(iii) (i) / (ii), expressed as a percentage(12) __________%
8. Restricted Payments
(a) Restricted Payments made on or after
January 1, 2006 for Reporting Period and preceding
3 quarters $___________
This Compliance Certificate has been executed and delivered as of the date
set forth above.
EDUCATION REALTY OPERATING PARTNERSHIP,
LP
By: EDUCATION REALTY OP GP, INC.,
General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
- ----------
(12) Pursuant to Section 6.04, cannot exceed thirty percent (30%) of Total Asset
Value.
B-4
CREDIT AGREEMENT
EXHIBIT C
FORM OF GUARANTY
THIS GUARANTY dated as of _______________, 2006, executed and delivered by
each of the undersigned, whether one or more, (all each a "Guarantor" and,
collectively, the "Guarantors"), in favor of (a) KEYBANK, NATIONAL ASSOCIATION,
in its capacity as Administrative Agent (the "Agent") for the Lenders under that
certain Credit Agreement dated as of MARCH 30, 2006, by and among EDUCATION
REALTY OPERATING PARTNERSHIP, LP, EDR ATHENS I, LLC, EDR TALLAHASSEE I, LLC, EDR
C STATION, LLC, EDR TALLAHASSEE LIMITED PARTNERSHIP, EDR THARPE LIMITED
PARTNERSHIP and EDR LAWRENCE LIMITED PARTNERSHIP (collectively, the "Borrower"),
the financial institutions party thereto and their assignees in accordance
therewith (the "Lenders"), and the Agent (as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Credit Agreement") and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have made available
to the Borrower certain financial accommodations on the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Borrower and each Guarantor, though separate legal entities,
are mutually dependent on each other in the conduct of their respective
businesses as an integrated operation and have determined it to be in their
mutual best interests to obtain financing from the Agent and the Lenders through
their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, each Guarantor is willing to guarantee the Borrower's obligations
to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is one of
the conditions precedent to the Agent and the Lenders making, or continuing to
make, such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely and unconditionally
guaranties the due and punctual payment and performance of all of the following
when due (collectively referred to as the "Obligations"): (a) all indebtedness
and obligations owing by the Borrower to any of the Lenders or the Agent under
or in connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the Loans made
by the Lenders to the Borrower under the Credit Agreement and the payment of all
interest, fees,
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charges, reasonable attorneys fees and other amounts payable to any Lender or
the Agent thereunder or in connection therewith (including any Hedging
Agreement); (b) any and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; and (c) all expenses, including, without
limitation, reasonable attorneys' fees and disbursements, that are incurred by
the Lenders or the Agent in the enforcement of any of the foregoing or any
obligation of such Guarantor hereunder.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, the Lenders and the Agent shall not be obligated or
required before enforcing this Guaranty against any Guarantor: (a) to pursue any
right or remedy the Lenders or the Agent may have against the Borrower, any
other Guarantor or any other Person or commence any suit or other proceeding
against the Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to make demand of the
Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Obligations. In this connection, each Guarantor
hereby waives the right of such Guarantor to require any holder of the
Obligations to take action against the Borrower as provided by any legal
requirement of any Governmental Authority.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any legal requirement now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or the Lenders with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute and unconditional in accordance with its terms
and shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever (other than the full and final payment and
performance of the Obligations), including, without limitation, the following
(whether or not such Guarantor consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other term
of any of the Obligations; (ii) any change in the time, place or manner of
payment of all or any portion of the Obligations; (iii) any amendment or waiver
of, or consent to the departure from or other indulgence with respect to, the
Credit Agreement, any other Loan Document, or any other document or instrument
evidencing or relating to any Obligations; or (iv) any waiver, renewal,
extension, addition, or supplement to, or deletion from, or any other action or
inaction under or in respect of, the Credit Agreement, any of the other Loan
Documents, or any other documents, instruments or agreements relating to the
Obligations or any other instrument or agreement referred to therein or
evidencing any Obligations or any assignment or transfer of any of the
foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Obligations or any assignment or transfer
of any of the foregoing;
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(c) any furnishing to the Agent or the Lenders of any security for the
Obligations, or any sale, exchange, release or surrender of, or realization on,
any collateral security for the Obligations;
(d) any settlement or compromise of any of the Obligations, any security
therefor, or any liability of any other party with respect to the Obligations,
or any subordination of the payment of the Obligations to the payment of any
other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any other
Guarantor, the Borrower or any other Person, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or other Lien on any of the
collateral securing any of the Obligations;
(g) any act or failure to act by the Borrower or any other Person which may
adversely affect such Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty;
(h) any application of sums paid by the Borrower or any other Person with
respect to the liabilities of the Borrower to the Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor hereunder.
Section 4. Action with Respect to Obligations. The Lenders and the Agent
may in accordance with the Credit Agreement, at any time and from time to time,
without the consent of, or notice to, any Guarantor, and without discharging any
Guarantor from its obligations hereunder take any and all actions described in
Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms of
any of the Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Obligations or the interest rate that may
accrue on any of the Obligations; (b) amend, modify, alter or supplement the
Credit Agreement or any other Loan Document; (c) sell, exchange, release or
otherwise deal with all, or any part, of any collateral securing any of the
Obligations; (d) release any Person liable in any manner for the payment or
collection of the Obligations; (e) exercise, or refrain from exercising, any
rights against the Borrower or any other Person (including, without limitation,
any other Guarantor); and (f) apply any sum, by whomsoever paid or however
realized, to the Obligations in such order as the Lenders or the Agent shall
elect in accordance with the Credit Agreement.
Section 5. Representations and Warranties. Each Guarantor hereby makes to
the Agent and the Lenders all of the representations and warranties made by the
Borrower with respect to or
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in any way relating to such Guarantor in the Credit Agreement and the other Loan
Documents, as if the same were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants which
the Borrower is to cause such Guarantor to comply with under the terms of the
Credit Agreement or any other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
applicable law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the Lenders
are prevented from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise
would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Obligations. Each Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be,
with respect to any Obligations if at any time payment of any such Obligations
is rescinded or otherwise must be restored by the Agent and/or the Lenders upon
the bankruptcy or reorganization of the Borrower or any Guarantor or otherwise.
Section 10. Subrogation. Until all of the Obligations shall have been
indefeasibly paid in full, any right of subrogation a Guarantor may have shall
be subordinate to the rights of Agent and the Lenders and each Guarantor hereby
waives any right to enforce any remedy which the Agent and/or the Lenders now
have or may hereafter have against the Borrower, and each Guarantor hereby
waives any benefit of, and any right to participate in, any security or
collateral given to the Agent and the Lenders to secure payment or performance
of any of the Obligations.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes (as defined in the Credit Agreement) or Other Taxes (as
defined in the Credit Agreement); provided that if any Guarantor shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), the Agent, or Lender (as defined in the Credit Agreement)
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made; (ii) such Guarantor shall make such
deductions; and (iii) such Guarantor shall pay the full amount deducted to the
relevant Governmental Authority (as defined in the Credit Agreement) in
accordance with applicable law.
Section 12. Set-off. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each
Lender is hereby authorized at any time
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and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations at any time owing by such Lender
to or for the credit or the account of any Guarantor against any of and all the
obligations of such Guarantor now or hereafter existing under this Guaranty held
by such Lender then due and payable. Each Guarantor agrees, to the fullest
extent it may effectively do so under applicable law, that any holder of a
participation in a Note, whether or not acquired pursuant to the applicable
provisions of the Credit Agreement, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of such Guarantor in the
amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants and
agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower or any other Guarantor to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower or any other Guarantor (collectively, the "Junior
Claims") shall be subordinate and junior in right of payment to all Obligations;
provided, however, that payment thereof may be made so long as no Event of
Default shall have occurred and be continuing. If an Event of Default shall have
occurred and be continuing, then no Guarantor shall accept any direct or
indirect payment (in cash, property, securities by setoff or otherwise) from the
Borrower or any other Guarantor on account of or in any manner in respect of any
Junior Claim until all of the Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the
Agent and the Lenders that in any Proceeding, such Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
applicable law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
applicable laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the "Avoidance Provisions." Accordingly, to the
extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under the Avoidance Provisions, the maximum Obligations for
which such Guarantor shall be liable hereunder shall be reduced to that amount
which, as of the time any of the Obligations are deemed to have been incurred
under the Avoidance Provisions, would not cause the obligations of any Guarantor
hereunder (or any other obligations of such Guarantor to the Agent and the
Lenders), to be subject to avoidance under the Avoidance Provisions. This
Section is intended solely to preserve the rights of the Agent and the Lenders
hereunder to the maximum extent that would not cause the obligations of any
Guarantor hereunder to be subject to avoidance under the Avoidance Provisions,
and no Guarantor nor any other Person shall have any right or claim under this
Section as against the Agent and the Lenders that would not otherwise be
available to such Person under the Avoidance Provisions.
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Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower, of
the other Guarantors and of all other circumstances bearing upon the risk of
nonpayment of any of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Agent or any Lender shall have any duty whatsoever to advise any Guarantor
of information regarding such circumstances or risks.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 17. Jurisdiction; Venue; JURY WAIVER.
(a) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the state and
federal courts in Boston, Massachusetts and in New York, New York, and any
appellate court from any thereof, in any action or proceeding arising out
of or relating to this Guaranty or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guaranty
shall affect any right that the Agent, or any Lender may otherwise have to
bring any action or proceeding relating to this Guaranty or any other Loan
Document against the Guarantor or its properties in the courts of any
jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Guaranty or any
other Loan Document in any court referred to in paragraph (a) of this
Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(c) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
C-6
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 18. Loan Accounts. The Agent may maintain books and accounts
setting forth the amounts of principal, interest and other sums paid and payable
with respect to the Obligations, and in the case of any dispute relating to any
of the outstanding amount, payment or receipt of Obligation or otherwise, the
entries in such account shall be binding upon each Guarantor as to the
outstanding amount of such Obligations and the amounts paid and payable with
respect thereto absent manifest error. The failure of the Agent to maintain such
books and accounts shall not in any way relieve or discharge any Guarantor of
any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent or the Lenders in the exercise of any right or remedy it may have against
any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or the Lenders of any such right or
remedy shall preclude other or further exercise thereof or the exercise of any
other such right or remedy.
Section 20. Successors and Assigns. Each reference herein to the Agent or
the Lenders shall be deemed to include such Person's respective successors and
assigns (including, but not limited to, any holder of the Obligations) in whose
favor the provisions of this Guaranty also shall inure, and each reference
herein to any Guarantor shall be deemed to include the Guarantor's successors
and assigns, upon whom this Guaranty also shall be binding. The Lenders and the
Agent may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Obligation, or grant or sell participation in any
Obligations, to any Person or entity without the consent of, or notice to, any
Guarantor and without releasing, discharging or modifying such Guarantor's
obligations hereunder. Each Guarantor hereby consents to the delivery by the
Agent or any Lender to any assignee, transferee or participant of any financial
or other information regarding the Borrower or any Guarantor. Each Guarantor may
not assign or transfer its obligations hereunder to any Person.
Section 21. Amendments. This Guaranty may not be amended except as provided
in the Credit Agreement.
Section 22. Payments. All payments made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Agent
at the place and time provided for in the Credit Agreement on the date one (1)
Business Day after written demand therefor to such Guarantor by the Agent.
SECTION 23. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
GUARANTORS HEREUNDER AND UNDER OTHER LOAN DOCUMENTS SHALL BE JOINT AND SEVERAL,
AND ACCORDINGLY, EACH GUARANTOR (BUT NOT ITS LIMITED PARTNERS, SHAREHOLDERS OR
MEMBERS) CONFIRMS THAT IT (BUT NOT ITS LIMITED PARTNERS, SHAREHOLDERS OR
MEMBERS) IS LIABLE FOR THE FULL AMOUNT OF THE OBLIGATIONS AND ALL OF THE
OBLIGATIONS AND
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LIABILITIES OF EACH OF THE OTHER GUARANTORS HEREUNDER AND UNDER OTHER LOAN
DOCUMENTS.
Section 24. Notices. All notices, requests and other communications
hereunder shall be in writing and shall be given as provided in the Loan
Agreement. Each Guarantor's address for notice is set forth below its signature
hereto.
Section 25. Severability. In case any provision of this Guaranty shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 26. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 27. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code or
any other applicable bankruptcy laws; (ii) a custodian (as defined in the
Bankruptcy Code or any other applicable bankruptcy laws) is appointed for, or
takes charge of, all or any substantial part of the property of any Guarantor;
(iii) any other proceeding under any applicable law, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding-up or composition
for adjustment of debts, whether now or hereafter in effect, is commenced
relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or
bankrupt; (v) any order of relief or other order approving any such case or
proceeding is entered by a court of competent jurisdiction; (vi) any Guarantor
makes a general assignment for the benefit of creditors; (vii) any Guarantor
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; (viii) any Guarantor shall call
a meeting of its creditors with a view to arranging a composition or adjustment
of its debts; (ix) any Guarantor shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or (x) any
corporate action shall be taken by any Guarantor for the purpose of effecting
any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
(GUARANTOR)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for Notices:
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c/o EDUCATION REALTY OPERATING
PARTNERSHIP, LP
530 Oak Court Drive, Suite 300
Memphis, Tennessee 38117
Attention: Randall H. Brown
C-9
CREDIT AGREEMENT
EXHIBIT D
FORM OF NOTE
$_________________ __________, 2006
FOR VALUE RECEIVED, EDUCATION REALTY OPERATING PARTNERSHIP, LP, EDR ATHENS
I, LLC, EDR TALLAHASSEE I, LLC, EDR C STATION, LLC, EDR TALLAHASSEE LIMITED
PARTNERSHIP, EDR THARPE LIMITED PARTNERSHIP, AND EDR LAWRENCE LIMITED
PARTNERSHIP (collectively, the "Maker") jointly and severally promise to pay
without offset or counterclaim to the order of [insert name of Lender],
("Payee"), the principal amount equal to the lesser of (x)
__________________________ ($_____________) or (y) the outstanding amount
advanced by Payee as a Loan under the Credit Agreement (as hereinafter defined),
payable in accordance with the terms of the Credit Agreement.
Maker also promises to pay interest on the unpaid principal amount of this
Note (this "Note") at the rates and at the times which shall be determined in
accordance with the provisions of that certain Credit Agreement dated of even
date herewith, among Maker, the Lenders named therein, and KeyBank, National
Association, as Administrative Agent for itself and the Lenders (as hereafter
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Capitalized terms used herein without definition shall have the
meanings set forth in the Credit Agreement.
This Note is subject to mandatory prepayment and prepayment at the option
of the Maker, as provided in the Credit Agreement.
This Note is issued pursuant to the Credit Agreement and is entitled to the
benefits of the Credit Agreement, reference to which is hereby made for a more
complete statement of the terms and conditions under which the Loan evidenced
hereby is made and is to be repaid.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK. MAKER AGREES THAT JURISDICTION AND VENUE FOR ANY
ACTION REGARDING THIS NOTE SHALL BE AS SET FORTH IN THE CREDIT AGREEMENT.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note may become, or may be declared to be, due and
payable in the manner, upon the conditions and with the effect provided in the
Credit Agreement.
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Maker promises to pay all fees, costs and expenses incurred in the
collection and enforcement of this Note in accordance with the terms of the
Credit Agreement. Maker and any endorser of this Note hereby consents to
renewals and extensions of time at or after the maturity hereof, without notice,
and hereby waive diligence, presentment, protest, demand and notice of every
kind (except such notices as may be expressly required under the Credit
Agreement or the other Loan Documents) and, to the full extent permitted by law,
the right to plead any statute of limitations as a defense to any demand
hereunder.
Whenever possible, each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Note.
IN WITNESS WHEREOF, Maker has caused this Note to be executed and delivered
by its duly authorized officer, as of the day and year first written above.
EDUCATION REALTY OPERATING
PARTNERSHIP, LP, a Delaware limited
partnership
By: EDUCATION REALTY OP GP, INC.,
a Delaware corporation,
General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-2
EDR TALLAHASSEE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: EDR Tallahassee, LLC,
a Delaware limited liability
company, its general partner
By: EDR Tallahassee, Inc.,
a Delaware corporation, its
managing member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EDR THARPE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: EDR Tharpe, LLC,
a Delaware limited liability
company, its general partner
By: EDR Tharpe, Inc.,
a Delaware corporation, its
managing member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-3
EDR LAWRENCE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: EDR Lawrence, LLC,
a Delaware limited liability
company, its general partner
By: EDR Lawrence, Inc.,
a Delaware corporation, its
managing member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EDR C STATION, LLC,
a Delaware limited liability company
By: Education Realty Operating
Partnership, LP, a Delaware limited
partnership, its managing member
By: Education Realty OP GP, Inc.,
a Delaware corporation, its
general partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-4
EDR ATHENS I, LLC, a Delaware
limited liability company
By: Education Realty Trust, LLC,
a Delaware limited partnership, its
managing member
By: Education Realty Operating
Partnership, LP, a Delaware
limited liability company, its
managing member
By: Education Realty OP GP,
Inc., a Delaware corporation,
its general partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EDR TALLAHASSEE I, LLC, a
Delaware limited liability company
By: Education Realty Trust, LLC,
a Delaware limited liability
company, its managing member
By: Education Realty Operating
Partnership, LP, a Delaware
limited partnership,
its managing member
By: Education Realty OP GP, Inc.
a Delaware corporation, its
general partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-5
CREDIT AGREEMENT
EXHIBIT E
[FORM OF] INTEREST ELECTION REQUEST
[Date]
KeyBank, National Association
as Administrative Agent
225 Franklin Street, 18th floor
Boston, Massachusetts 02110
Attn: Mr. Gregory W. Lane
Re: Education Realty Operating Partnership, LP
Interest Election Request
Dear Ladies and Gentlemen:
This Request is made with reference to that certain Credit Agreement dated
as of ________________, 2006 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Education Realty Operating
Partnership, LP and certain of its Subsidiaries (collectively, the "Borrower"),
the financial institutions party thereto, as lenders, and KeyBank, National
Association, as Administrative Agent. All capitalized terms used in this Request
(including any attachments hereto) and not otherwise defined in this Borrowing
Request shall have the meanings set forth for such terms in the Credit
Agreement. All Section references herein shall refer to the Credit Agreement.
This request is made by Education Realty Operating Partnership, LP on behalf of
the Borrower.
The Borrower hereby requests [check as applicable] [ ] a conversion of an
existing Loan as provided below, in the amount of $____________ [minimum of
$1,000,000.00 and in multiples of $100,000.00].
The conversion is to be made as follows:
A. ABR Borrowing.
1. Amount of ABR Borrowing: $_____________
2. Date of ABR Borrowing _____________
B. Eurodollar Borrowing:
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1. Amount of Eurodollar Borrowing: $_____________
2. Amount of conversion of existing Loan to
Eurodollar Borrowing: $_____________
3. Number of Eurodollar Borrowing(s) now in effect: _____________
[cannot exceed six (6)]
4. Date of Eurodollar Rate or conversion: _____________
5. Interest Period: _____________
6. Expiration date of current Interest Period as to
this conversion: _____________
The Borrower hereby represents and warrants that the amounts set forth
above are true and correct, that the amount above requested has actually been
incurred, that the representations and warranties contained in the Credit
Agreement are true and correct as if made as of this date (except to the extent
relating to a specific date), and that the Borrower has kept, observed,
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performed and fulfilled each and every one of its obligations under the Credit
Agreement as of the date hereof [except as follows: _______________]
Very truly yours,
EDUCATION REALTY OPERATING
PARTNERSHIP, LP
By: EDUCATION REALTY OP GP, INC.,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-3