SECOND AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 23, 1998
AMONG
CENTERPOINT PROPERTIES TRUST,
AS BORROWER,
THE FIRST NATIONAL BANK OF CHICAGO
AS ADMINISTRATIVE AGENT AND LENDER, AND
BANK OF AMERICA, N.T.S.A.
AS DOCUMENTATION AGENT AND LENDER, AND
THE SEVERAL OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
THE CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.1. Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.2. Final Principal Payment and Extension Option . . . . . . . . . . . . . . . . . . . 21
2.3. Ratable Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.4. Applicable Margins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.5. Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.6. Other Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.7. Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.8. Optional Principal Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.9. Method of Selecting Types and Interest Periods for New Advances. . . . . . . . . . 23
2.10. Conversion and Continuation of Outstanding Advances. . . . . . . . . . . . . . . . 24
2.11. Changes in Interest Rate, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.12. Rates Applicable After Default . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.13. Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.14. Competitive Bid Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.15. Fixed Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.16. Method of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.17. Notes; Telephonic Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.18. Interest Payment Dates; Interest and Fee Basis . . . . . . . . . . . . . . . . . . 32
2.19. Notification of Advances, Interest Rates and Prepayments . . . . . . . . . . . . . 32
2.20. Lending Installations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.21. Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . . . . 33
2.22. Withholding Tax Exemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.23. Voluntary Reduction of Aggregate Commitment Amount . . . . . . . . . . . . . . . . 34
2.24. Increase in Aggregate Commitment Amount. . . . . . . . . . . . . . . . . . . . . . 34
2.25 Usury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.26 Application of Moneys Received . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE III
THE LETTER OF CREDIT SUBFACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.1. Obligation to Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.2. Types and Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.3. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.4. Procedure for Issuance of Facility Letters of Credit . . . . . . . . . . . . . . . 38
3.5. Reimbursement Obligations; Duties of Issuing Bank. . . . . . . . . . . . . . . . . 39
3.6. Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.7. Payment of Reimbursement Obligations . . . . . . . . . . . . . . . . . . . . . . . 41
3.8. Compensation for Facility Letters of Credit. . . . . . . . . . . . . . . . . . . . 42
3.9. Letter of Credit Collateral Account. . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE IV
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CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.1. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.2. Changes in Capital Adequacy Regulations. . . . . . . . . . . . . . . . . . . . . . 43
4.3. Availability of LIBOR Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.4. Funding Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.5. Lender Statements; Survival of Indemnity . . . . . . . . . . . . . . . . . . . . . 44
4.6. Limitation on Borrower's Liability . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE V
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.1. Initial Advance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.2. Conditions to Each Advance, Issuance of Facility Letter of Credit and
Continuation/Conversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VI
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.1. Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.3. No Conflict; Government Consent. . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.4. Financial Statements; Material Adverse Change. . . . . . . . . . . . . . . . . . . 49
6.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.6. Litigation and Contingent Obligations. . . . . . . . . . . . . . . . . . . . . . . 49
6.7. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.8. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.9. Accuracy of Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.10. Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.11. Material Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.12. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.13. Ownership of Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.14. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.15. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . 52
6.16. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.17. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.18. NYSE and REIT Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.19. Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.20. Licenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.21. Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.22. Property Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.23. Updated Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.24. Unencumbered Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.25. Year 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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ARTICLE VII
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.1. Financial Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.2. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.3. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.4. Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.6. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.7. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.8. Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.10. Maintenance of Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.11. Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.12. Merger; Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.13. Transfers of Unencumbered Assets . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.14. Ownership and Control of Borrower. . . . . . . . . . . . . . . . . . . . . . . . . 64
7.15. Subsidiaries and Qualifying Investment Affiliates. . . . . . . . . . . . . . . . . 64
7.16. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.17. Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.18. Interest Rate Hedging. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.19. Variable Interest Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.20. Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.21. Indebtedness and Cash Flow Covenants . . . . . . . . . . . . . . . . . . . . . . . 66
7.22. Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.23. Notification of Rating Change. . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.24. Maximum Revenue from Single Tenant . . . . . . . . . . . . . . . . . . . . . . . . 68
7.25. Negative Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.26. Manager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.27. Acceleration Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.28. Lien Searches; Title Searches. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.29. Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.30. Calculation of Financial Covenants Upon Property Breaches. . . . . . . . . . . . . 69
ARTICLE VIII
DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . 72
9.1. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
9.2. Amendments, Waivers, Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.3. Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE X
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.1. Survival of Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.2. Governmental Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.3. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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10.4. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.5. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.6. Several Obligations; Benefits of this Agreement. . . . . . . . . . . . . . . . . . 75
10.7. Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.8. Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.9. Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.10. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.11. Nonliability of Lenders, Arrangers, Administrative Agent and
Documentation Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.12. Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.13. Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.14. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.15. CHOICE OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.16. CONSENT TO JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.17. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE XI
THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS. . . . . . . . . . . . . . . . . . . . . 78
11.1. Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.3. General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.4. No Responsibility for Loans, Recitals, etc.. . . . . . . . . . . . . . . . . . . . 79
11.5. Action on Instructions of Lenders. . . . . . . . . . . . . . . . . . . . . . . . . 79
11.6. Employment of Administrative Agents and Counsel. . . . . . . . . . . . . . . . . . 79
11.7. Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.8. Administrative Agent's Reimbursement and Indemnification . . . . . . . . . . . . . 80
11.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.10. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.11. Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.12. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.13. Requests for Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.14. Copies of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.15. Defaulting Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE XII
RATABLE PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.1. Intentionally Deleted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.2. Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS. . . . . . . . . . . . . . . . . . . . . . . 84
13.1. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.2.1. Permitted Participants; Effect. . . . . . . . . . . . . . . . . . . . . . 84
13.2.2. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.3. Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.3.1. Permitted Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . 85
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13.3.2. Effect; Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.4. Designation of Lender to Make Competitive Loans. . . . . . . . . . . . . . . . . . 86
13.5. Dissemination of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.6. Tax Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.7. Possession of Loan Documents and Register. . . . . . . . . . . . . . . . . . . . . 87
ARTICLE XIV
NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
14.1. Giving Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
14.2. Change of Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
14.3. Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE XV
COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
PAGE
Exhibits:
Exhibit A Pricing Grid
Exhibit B-1 Form of Note
Exhibit B-2 Competitive Bid Notes
Exhibit C-1 Competitive Bid Quote Request
Exhibit C-2 Invitation to Submit Competitive Bids
Exhibit C-3 Competitive Bid Quote
Exhibit D Form of Opinion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment Agreement
Exhibit G Form of Loan/Credit Related Money Transfer Instruction
Exhibit H Minimum Specifications for Environmental Investigations
Exhibit I Form of Designation Agreement
Exhibit J Form of Amendment Regarding Increase
Schedules:
Schedule 1 Subsidiaries and Other Investments
Schedule 2 Unencumbered Assets
Schedule 3 Indebtedness and Liens
Schedule 4 Plans and Multiemployer Plans
Schedule 5 Environmental Disclosures
Schedule 6 Noncompliance with Laws
Schedule 7 Litigation and Investigations
Schedule 8 Contingent Obligations
Schedule 9 Indebtedness Defaults
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SECOND AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
This Second Amended and Restated Unsecured Revolving Credit Agreement
("AGREEMENT"), dated as of November 23, 1998, is among CENTERPOINT PROPERTIES
TRUST, a Maryland real estate investment trust (the "BORROWER"), the several
banks, financial institutions and other entities from time to time parties to
this Agreement (collectively, the "LENDERS"), THE FIRST NATIONAL BANK OF
CHICAGO, not individually, but as "ADMINISTRATIVE AGENT", and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BOA"), not individually, but as
Documentation Agent.
RECITALS
A. The Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing, managing, financing and selling
warehouse/industrial properties. It also currently owns three retail
properties having approximately 61,183 square feet of gross leasable area,
the headquarters building in Skokie, Illinois leased to Ha-Lo, a parking lot
located in the Naperville Business Park and one 682-unit apartment complex
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (collectively, the
"NON-INDUSTRIAL PROPERTIES").
B. The Borrower's common shares of beneficial interest are listed on
the New York Stock Exchange, and the Borrower is qualified as a real estate
investment trust.
C. The Borrower, the Administrative Agent, and certain of the Lenders
entered into an Unsecured Revolving Credit Agreement dated as of October 23,
1996, as previously amended (the "ORIGINAL CREDIT AGREEMENT") pursuant to
which the Lenders that are parties thereto agreed to make loans to the
Borrower in the maximum aggregate amount of $135,000,000 (the "ORIGINAL
FACILITY").
D. The Original Credit Agreement was amended and restated in an
Amended and Restated Unsecured Revolving Credit Agreement dated as of
November 13, 1997, as previously amended (the "PRIOR CREDIT AGREEMENT")
pursuant to which the Lenders that are parties thereto agreed to make loans
to the Borrower in the maximum aggregate amount of $150,000,000 (the "PRIOR
FACILITY").
E. The Borrower has requested that the Lenders increase the amount of
loans that are available to the Borrower to the aggregate amount of
$250,000,000 pursuant to the terms of this Agreement (the "Facility"), and
that the Administrative Agent act as administrative agent for the Lenders and
that the Documentation Agent act as documentation agent for the Lenders and
that certain other changes be made to the Prior Facility. The Administrative
Agent, the Documentation Agent and the Lenders have agreed to do so.
F. First Chicago Capital Markets has arranged the Facility between the
Lenders and Borrower and coordinated the closing of the Facility.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"ABSOLUTE INTEREST PERIOD" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of up to 180 days as requested by Borrower
in a Competitive Bid Quote Request and confirmed by a Lender in a Competitive
Bid Quote but in no event extending beyond the Facility Termination Date. If
an Absolute Interest Period would end on a day which is not a Business Day,
such Absolute Interest Period shall end on the next succeeding Business Day.
"ABSOLUTE RATE" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive
Bid Loan offered by a Lender and accepted by the Borrower at such rate.
"ADMINISTRATIVE AGENT" means The First National Bank of Chicago in its
capacity as agent for the Lenders pursuant to ARTICLE X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to ARTICLE XI.
"ADMINISTRATIVE AGENT'S FEE" is defined in SECTION 2.6.
"ADVANCE" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made by the Lenders to the Borrower of the same Type
(including Swing Line Loans) and, in the case of LIBOR Advances, for the same
Interest Period, including Reimbursement Obligations.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A
Person shall be deemed to control another Person if the controlling Person
owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or
otherwise.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the
Lenders, which initially shall be $250,000,000, subject to decreases as
provided in SECTION 2.23 and increases as provided in SECTION 2.24 and which
shall otherwise only be increased with the consent of all Lenders.
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"AGREEMENT" means this Second Amended and Restated Unsecured Revolving
Credit Agreement, as it may be amended or modified and in effect from time to
time.
"ALLOCATED FACILITY AMOUNT" means, at any time, the sum of all then
outstanding Advances and the then Facility Letter of Credit Obligations.
"APPLICABLE CAP RATE" means 10.25% for all Non-industrial Properties
that are not multi-family Properties and 9.50% for all industrial and
multi-family Properties.
"APPLICABLE LAWS" is defined in SECTION 6.24(c).
"APPLICABLE MARGIN" means the applicable margin set forth in the table
in SECTION 2.4 used in calculating the interest rate applicable to the
various Types of Advances, which shall vary from time to time in accordance
with the long term unsecured debt rating of Borrower or the rating of this
Facility in the manner set forth in SECTION 2.4.
"ARRANGERS" means Documentation Agent and First Chicago Capital Markets,
Inc.
"ARTICLE" means an article of this Agreement unless another document is
specifically referenced.
"ASSIGNMENT" as defined in SECTION 13.3.
"AUTHORIZED OFFICER" means with respect to the Borrower any of the
President, Executive Vice President, Chief Operating Officer, Chief Financial
Officer or Treasurer, acting singly.
"BORROWER" means CenterPoint Properties Trust, and its successors and
permitted assigns.
"BORROWING DATE" means a date on which an Advance is made hereunder.
"BORROWING NOTICE" is defined in SECTION 2.9.
"BREAK-UP FEE" means the amount due pursuant to SECTION 4.4 in the event
a LIBOR Advance or Fixed Rate Advance is prepaid.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, Illinois, and New York, New York for the
conduct of substantially all of their commercial lending activities and on
which dealings in United States dollars are carried on in the London
interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago, Illinois
and New York, New York for the conduct of substantially all of their
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commercial lending activities.
"CAPITAL EXPENDITURE RESERVE AMOUNT" means, for any period, 5CENTS per
square foot of leasable space in Unencumbered Assets (on an annualized basis).
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"CAPITALIZED LEASE" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"CASH EQUIVALENTS" means, as of any date, (i) securities issued or
directly and fully guaranteed or insured by the United States Government or
any agency or instrumentality thereof having maturities of not more than one
year from such date, (ii) time deposits and certificates of deposit having
maturities of not more than one year from such date and issued by any
domestic commercial bank having (A) senior long-term unsecured debt rated at
least A or the equivalent thereof by S&P or A2 or the equivalent thereof by
▇▇▇▇▇'▇ and (B) capital and surplus in excess of $100,000,000, (iii)
commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1
or the equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing within 120
days from such date; and (iv) shares of any money market mutual fund rated at
least AAA or the equivalent thereof by S&P or at least Aaa or the equivalent
thereof by ▇▇▇▇▇'▇.
"CBR ADVANCE" means an Advance which bears interest at the CBR Rate.
"CBR APPLICABLE MARGIN" means, as of any date, the Applicable Margin in
effect on such date with respect to CBR Advances and CBR Loans, as determined
in accordance with SECTION 2.4.
"CBR LOAN" means a Loan which bears interest at the CBR Rate.
"CBR RATE" means, for any day, a rate per annum equal to (i) the
Corporate Base Rate for such day plus (ii) CBR Applicable Margin for such
day, in each case changing when and as the Corporate Base Rate changes.
"CDP" means CenterPoint Development Corporation.
"CLOSING DATE" means the date of this Agreement.
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"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMITMENT" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or
as set forth in any Notice of Assignment relating to any assignment that has
become effective pursuant to SECTION 13.3.2, as such amount may be modified
from time to time pursuant to the terms hereof.
"COMPETITIVE BID BORROWING NOTICE" is defined in SECTION 2.14(f).
"COMPETITIVE BID LENDER" means a Lender or Designated Lender which has a
Competitive Bid Loan outstanding.
"COMPETITIVE BID LOAN" is a Loan made pursuant to SECTION 2.14 hereof.
"COMPETITIVE BID NOTE" means a new or an amended and restated promissory
note payable to the order of the applicable Lender in the form attached
hereto as EXHIBIT B-2 to be used to evidence any Competitive Bid Loans which
such Lender elects to make (collectively, the "Competitive Bid Notes").
"COMPETITIVE BID QUOTE" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as EXHIBIT C-3.
"COMPETITIVE BID QUOTE REQUEST" means a written request from Borrower to
Administrative Agent in the form attached as EXHIBIT C-1.
"COMPETITIVE LIBOR MARGIN" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the
applicable Competitive Bid Quote which is to be used to determine the
interest rate applicable to such Competitive Bid Loan.
"CONDEMNATION" is defined in SECTION 8.9.
"CONSOLIDATED NET WORTH" means, as of any date of determination, an
amount equal to (a) Market Capitalization as of such date MINUS (b) Total
Liabilities (other than Excludable Convertible Securities) as of such date.
"CONSOLIDATED SECURED INDEBTEDNESS" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries outstanding at such date
which is secured by a Lien on any asset of the Borrower or any Subsidiary,
including without limitation loans secured by mortgages, stock, or
partnership interests, (b) the Borrower's pro rata share (based on economic
interest) of any secured debt of Investment Affiliates, without duplication
of any Indebtedness included under clause (a), after eliminating intercompany
items, and (c)
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the aggregate principal amount of all unsecured Indebtedness of the
Subsidiaries of Borrower that have not furnished guaranties of the Facility.
"CONSOLIDATED SENIOR UNSECURED INDEBTEDNESS" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries outstanding at such date
(excluding Indebtedness which is contractually subordinated to the
Indebtedness of the Borrower and its Subsidiaries under the Loan Documents on
customary terms acceptable to the Administrative Agent) which does not
constitute Consolidated Secured Indebtedness, and (b) the Borrower's pro rata
share (based on economic interest) of any unsecured debt of Qualifying
Investment Affiliates that own assets included in the calculation of Value of
Unencumbered Assets, without duplication of any Indebtedness included under
clause (a), after eliminating intercompany items.
"CONSOLIDATED TOTAL INDEBTEDNESS" means, as of any date of
determination, all Indebtedness of the Borrower and its Subsidiaries
outstanding at such date, determined on a consolidated basis in accordance
with GAAP, after eliminating intercompany items.
"CONSOLIDATED UNSECURED INDEBTEDNESS" means, as of any date of
determination, the sum of the aggregate principal amount of all Indebtedness
for borrowed money of the Borrower and its Subsidiaries outstanding at such
date which does not constitute Consolidated Secured Indebtedness, after
eliminating intercompany items.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries
or Qualifying Investment Affiliates, are treated as a single employer under
Section 414 of the Code.
"CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.10.
"CORPORATE BASE RATE" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as such corporate base rate changes.
"CRS" means CenterPoint Realty Services Corporation.
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"DEBT SERVICE" means, for any period, (a) Interest Expense for such
period PLUS (b) the aggregate amount of regularly scheduled principal
payments of Indebtedness (excluding optional prepayments and balloon
principal payments due on maturity in respect of any Indebtedness) required
to be made during such period by the Borrower, or any of its Subsidiaries
PLUS (c) a percentage of all such regularly scheduled principal payments
required to be made during such period by any Investment Affiliate on
Indebtedness (excluding optional prepayments and balloon principal payments
due on maturity in respect of any Indebtedness) taken into account in
calculating Interest Expense, equal to the greater of (x) the percentage of
the principal amount of such Indebtedness for which the Borrower or any
Subsidiary is liable and (y) the percentage ownership interest in such
Investment Affiliate held by the Borrower and any Subsidiaries, in the
aggregate, without duplication.
"DEBT-TYPE PREFERRED STOCK" means, for any Person, any preferred stock
issued by such Person which is not typical preferred stock but instead is both
(i) redeemable by the holders thereof on any fixed date or upon the occurrence
of any event and (ii) as to payment of dividends or amounts on liquidation,
either guaranteed by any direct or indirect subsidiary of such Person or secured
by any property of such Person or any direct or indirect subsidiary of such
Person.
"DEBT-TYPE PREFERRED STOCK EXPENSE" for any period for any Person, the
aggregate dividend payments due to the holders of Debt-Type Preferred Stock of
such Person, whether payable in cash or in kind, and whether or not actually
paid during such period.
"DEFAULT" means an event of default described in ARTICLE VIII.
"DEFAULTING LENDER" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; PROVIDED that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"DESIGNATED LENDER" means any Person who has been designated by a Lender
to fund Competitive Bid Loans.
"DESIGNATING LENDER" is defined in SECTION 13.4.
"DESIGNATION AGREEMENT" means a designation agreement entered into by a
Lender (other than a Designated Lender) and a Designated Lender, and accepted
by the Administrative Agent and Borrower, in substantially the form of
Exhibit I hereto.
"DOCUMENTATION AGENT" means ▇▇▇▇▇▇ Brothers Holdings Inc.
"DUFF & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Company.
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"EBITDA" means income before extraordinary items (but after the impact
of minority interests and reduced to eliminate any income from Investment
Affiliates), as reported by the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP, plus Interest Expense,
depreciation, amortization and income tax (if any) expense plus a percentage
of such income (adjusted as described above) of any Investment Affiliate
equal to the allocable economic interest in such Investment Affiliate held by
the Borrower and any Subsidiaries, in the aggregate (provided that no item of
income or expense shall be included more than once in such calculation even
if it falls within more than one of the foregoing categories).
"ENVIRONMENTAL LAWS" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority having jurisdiction over
the Borrower, its Subsidiaries or Investment Affiliates, or their respective
assets, and regulating or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at
any time hereafter be in effect, in each case to the extent the foregoing are
applicable to the operations of the Borrower, any Investment Affiliate, or
any Subsidiary or any of their respective assets or Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"EXCLUDABLE CONVERTIBLE SECURITIES" means convertible subordinated debt
instruments which can be converted by the holder into common shares of the
Borrower at a price which is less than the market price for such shares as of
the end of the applicable quarter or which were converted during such quarter.
"FACILITY" is defined in RECITAL E.
"FACILITY FEE" is defined in SECTION 2.5.
"FACILITY LETTER OF CREDIT" means a Letter of Credit issued hereunder.
"FACILITY LETTER OF CREDIT OBLIGATIONS" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, without
duplication, of the Borrower with respect to Facility Letters of Credit,
including the aggregate undrawn face amount of the then outstanding Facility
Letters of Credit, but not including Reimbursement Obligations.
"FACILITY TERMINATION DATE" means October 24, 2001, subject to extension
pursuant to the terms and conditions of SECTION 2.2 hereof or such earlier
date on which the principal balance of the Facility and all other sums due in
connection with the Facility shall be due as a result of the acceleration of
the Facility.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum
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equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not
a Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10
a.m. (Chicago time) on such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent in its sole discretion.
"FINANCEABLE GROUND LEASE" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold
mortgagee ("MORTGAGEE") which include, among other things (i) a remaining
term of no less than 25 years from the Closing Date, (ii) that the lease
will not be terminated until the Mortgagee has received notice of a default
and has had a reasonable opportunity to cure or complete foreclosure, and
fails to do so, (iii) a new lease on the same terms to the Mortgagee as
tenant if the ground lease is terminated for any reason, (iv) non-merger of
the fee and leasehold estates, (v) free transferability of the tenant's
interest under the ground lease and (vi) that insurance proceeds and
condemnation awards (from the fee interest as well as the leasehold interest)
will be applied pursuant to the terms of a leasehold mortgage.
"FIRST CHICAGO" means The First National Bank of Chicago in its
individual capacity, and its successors.
"FITCH" means Fitch Investors Service, L.P.
"FIXED RATE" as defined in SECTION 2.15.
"FIXED RATE ADVANCE" means an Advance which bears interest at a Fixed
Rate.
"FULLY DILUTED DEBT SERVICE" means Debt Service less the amount of Debt
Service attributable to instruments which as of the end of the applicable
quarter are Excludable Convertible Securities.
"FUNDED PERCENTAGE" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to Borrower by such Lender at such time (including
Swing Line Loans and Competitive Bid Loans), and the denominator of which is
the total amount disbursed and outstanding to Borrower by all of the Lenders
at such time (including Swing Line Loans and Competitive Bid Loans).
"FUNDS FROM OPERATIONS" means, for any period, net income for such
period before depreciation and amortization, gains or losses from
extraordinary items (but including gains or losses on sales of real estate in
the ordinary course of business, E.G. build to suits), gains or losses on
investments in marketable securities and any
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provisions/benefits for income taxes for such period, and after adjustments
for Investment Affiliates, including joint ventures.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner
consistent with that used in preparing the financial statements referred to
in SECTION 7.1.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any quasi-governmental agency
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEE OBLIGATION" means, as to any Person (the "GUARANTEEING
PERSON"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any Letter of Credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter-indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "PRIMARY
OBLIGATIONS") of any other third Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the maximum stated amount of the primary
obligation relating to such Guarantee Obligation (or, if less, the maximum
stated liability set forth in the instrument embodying such Guarantee
Obligation), PROVIDED, that in the absence of any such stated amount or
stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"INDEBTEDNESS" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than current trade liabilities and other accounts payable and accrued
expenses incurred in the ordinary course of business and payable in
accordance with customary practices), to the extent such obligations
constitute indebtedness for the purposes of GAAP, (c) any other indebtedness
of such Person which is evidenced by a note, bond, debenture or similar
instrument, (d) all Capitalized Lease Obligations, (e) all obligations of
such Person in
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respect of acceptances issued or created for the account of such Person, (f)
all Guarantee Obligations of such Person (excluding in any calculation of
consolidated indebtedness of the Borrower, Guarantee Obligations of the
Borrower in respect of primary obligations of any Subsidiary), (g) all
reimbursement obligations of such Person for Letters of Credit and other
contingent liabilities, (h) all liabilities secured by any Lien (other than
Liens for taxes not yet due and payable) on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof, (i) any repurchase obligation or liability of such Person or
any of its Subsidiaries with respect to accounts or notes receivable sold by
such Person or any of its Subsidiaries, (j) Debt-Type Preferred Stock, (k)
such Person's pro rata share of debt in Investment Affiliates and (l) 100% of
any loans where such Person is liable as a general partner, provided,
however, that Indebtedness shall not include Excludable Convertible
Securities or ground lease payments (other than Capitalized Lease
Obligations).
"INTEREST EXPENSE" means all interest expense of the Borrower and its
Subsidiaries determined in accordance with GAAP PLUS (i) capitalized interest
not covered by an interest reserve from a loan facility, PLUS (ii) the
allocable portion (based on liability) of any accrued or paid interest
incurred on any obligation for which the Borrower is wholly or partially
liable under repayment, interest carry, or performance guarantees, or other
relevant liabilities, PLUS (iii) the allocable percentage of any accrued or
paid interest incurred on any Indebtedness of any Investment Affiliate,
whether recourse or non-recourse, equal to the applicable economic interest
in such Investment Affiliate held by the Borrower and any Subsidiaries, in
the aggregate, PLUS (iv) Debt-Type Preferred Stock Expense, provided that no
expense shall be included more than once in such calculation even if it falls
within more than one of the foregoing categories.
"INTEREST PERIOD" means an Absolute Rate Interest Period or a LIBOR
Interest Period.
"INVESTMENT" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business and other than advances to, or deposits with, contractors
and suppliers in the ordinary course of business), extension of credit (other
than accounts receivable arising in the ordinary course of business on terms
customary in the trade), deposit account or contribution of capital by such
Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, partnership interests, notes, debentures or other
securities of any other Person made by such Person.
"INVESTMENT AFFILIATE" means any Person in which the Borrower, directly
or indirectly, has an ownership interest, whose financial results are not
consolidated under GAAP with the financial results of the Borrower on the
consolidated financial statements of the Borrower.
"INVITATION FOR COMPETITIVE BID QUOTES" means a written notice to the
Lenders from the Administrative Agent in the form attached as EXHIBIT C-2 for
Competitive Bid Loans made pursuant to SECTION 2.14.
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"ISSUANCE DATE" as defined in SECTION 3.4(a)(2).
"ISSUANCE NOTICE" as defined in SECTION 3.4(c).
"ISSUING BANK" means, with respect to each Facility Letter of Credit,
any Lender which issues such Facility Letter of Credit.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement, their respective permitted successors and assigns and any
other lending institutions that subsequently become parties to this Agreement.
"LENDING INSTALLATION" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"LETTER OF CREDIT" of a Person means a letter of credit which is issued
upon the application of such Person or upon which such Person is an account
party or for which such Person is in any way liable.
"LETTER OF CREDIT COLLATERAL ACCOUNT" is defined in SECTION 3.9.
"LETTER OF CREDIT REQUEST" as defined in SECTION 3.4(a).
"LIBOR ADVANCE" means an Advance which bears interest at a LIBOR Rate,
whether a ratable Advance based on the LIBOR Applicable Margin or a
Competitive Bid Loan based on a Competitive LIBOR Margin.
"LIBOR APPLICABLE MARGIN" means, as of any date with respect to any
LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with SECTION 2.4 hereof.
"LIBOR BASE RATE" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative
Agent to be the rate at which deposits in U.S. dollars are offered by First
Chicago (or if First Chicago is no longer either Administrative Agent or a
Lender, then another Lender agreed upon by Borrower and the Required Lenders)
to first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such LIBOR Interest
Period, in the approximate amount of the relevant LIBOR Advance and having a
maturity approximately equal to such LIBOR Interest Period. The LIBOR Base
Rate shall be rounded to the next higher multiple of 1/16 of 1% if the rate
is not such a multiple.
"LIBOR INTEREST PERIOD" means, with respect to a LIBOR Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such LIBOR Interest Period with respect
to a LIBOR Advance shall end on (but exclude) the day which corresponds
numerically to such
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date one, two, three or six months thereafter, provided, however, that if
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such LIBOR Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a
LIBOR Interest Period would otherwise end on a day which is not a Business
Day, such LIBOR Interest Period shall end on the next succeeding Business
Day, provided, however, that if said next succeeding Business Day falls in a
new calendar month, such LIBOR Interest Period shall end on the immediately
preceding Business Day. If Borrower and Lenders agree on a Fixed Rate
Advance then reference herein to LIBOR Interest Period shall also include the
applicable interest period agreed upon among Borrower and Lenders for the
Fixed Rate Advance.
"LIBOR LOAN" means a Loan which bears interest at a LIBOR Rate.
"LIBOR RATE" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such LIBOR
Interest Period, plus (ii) the LIBOR Applicable Margin in effect on the day
that such LIBOR Base Rate was determined.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind
or nature whatsoever (including, without limitation, the interest of a vendor
or lessor under any conditional sale, Capitalized Lease or other title
retention agreement but excluding the leasehold interest of a lessee in a
lease that is not a Capitalized Lease).
"LIKE-KIND EXCHANGE" means any exchange of like-kind properties in
accordance with Section 1031 of the Code.
"LOAN" means, with respect to a Lender, such Lender's portion of any
Advance.
"LOAN DOCUMENTS" means this Agreement, the Notes, and any guaranty or
other document executed and delivered by the Borrower or a Qualifying
Investment Affiliate from time to time and evidencing, securing or
guaranteeing payment of indebtedness or obligations incurred by the Borrower
under this Agreement, as any of the foregoing may be amended or modified from
time to time.
"MARKET CAPITALIZATION" means, without duplication, (a) Total Property
Operating Income (allocated appropriately by category of Property)
capitalized at the Applicable Cap Rates for each Property type, plus (b)
other income (other than income derived from Qualified Mortgages and Cash and
Cash Equivalents) capitalized at 15%, plus (c) the Value of Qualified
Mortgages, plus (d) 100% of the value of Preleased Assets Under Development
but in no event shall the value of Preleased Assets Under Development exceed
$100,000,000, plus (e) the amount of any Unrestricted Cash and Cash
Equivalents owned by Borrower and its Subsidiaries and the pro rata share of
Unrestricted Cash and Cash Equivalents owned by Qualifying Investment
Affiliates,
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plus (f) 50% of the lower of book value or market value of land not under
development which is adjacent to stabilized improved properties (whether or
not such stabilized improved properties are owned by the Borrower or its
Subsidiaries). Market Capitalization shall be determined based on the
results of the most recent fiscal quarter as appropriately annualized in the
case of items (a) and (b) in the foregoing definition.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, Property, results of operations or financial condition of the
Borrower and its Subsidiaries taken as a whole or (ii) the ability of the
Borrower to perform its obligations under the Loan Documents, or (iii) the
validity or enforceability of any of the Loan Documents or the remedies or
material rights of the Administrative Agent or the Lenders thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"MAXIMUM LEGAL RATE" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and
as provided for herein or in the Note or other Loan Documents, under the laws
of such state or states whose laws are held by any court of competent
jurisdiction to govern the interest rate provisions of the Loan.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"MULTIEMPLOYER PLAN" means a Plan to which more than one employer is
obligated to make contributions, and which is maintained pursuant to one or
more collective bargaining agreements to which the Borrower or any member of
the Controlled Group is a party.
"NON-INDUSTRIAL PROPERTIES" is defined in RECITAL A.
"NOTE" means a new (in the case of Lenders not parties to the Prior
Credit Agreement) or an amended and restated (in the case of Lenders parties
to the Prior Credit Agreement) promissory note, in substantially the form of
EXHIBIT B-1 hereto, duly executed by the Borrower and payable to the order of
a Lender in the amount of its Commitment, including any amendment,
modification, renewal or replacement of such promissory note or a competitive
bid note, in substantially the form of EXHIBIT B-2 hereto, duly executed by
the Borrower and payable to the order of a Competitive Bid Lender, including
any amendment, modification, renewal or replacement of such note.
"NOTICE OF ASSIGNMENT" is defined in SECTION 13.3.2.
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"OBLIGATIONS" means all unpaid principal of and accrued and unpaid
interest on the Notes, the Facility Letter of Credit Obligations and all
accrued and unpaid fees and all expenses, reimbursements, indemnities and
other obligations of the Borrower or if and to the extent applicable, any
Qualifying Investment Affiliates to the Lenders or to any Lender, the
Administrative Agent, the Documentation Agent, or any indemnified party
hereunder arising under the Loan Documents.
"PARTICIPANTS" is defined in SECTION 13.2.1.
"PAYMENT DATE" means, with respect to the payment of interest accrued on
any CBR Advance or any Fixed Rate Advance, the first Business Day of each
calendar month (and in addition the last day of the applicable interest
period for a Fixed Rate Advance), and with respect to the payment of interest
accrued on any LIBOR Advance, the last day of the applicable LIBOR Interest
Period, and if the length of the LIBOR Interest Period is greater than 3
months, interest shall also be payable every 3 months during the term of such
LIBOR Interest Period.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERCENTAGE" means for each Lender the percentage of the Aggregate
Commitment allocated to such Lender as set forth opposite its signature, as
such Percentage may be changed from time to time.
"PERMITTED LIENS" are defined in SECTION 7.16.
"PERSON" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization,
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of
the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"PRELEASED ASSETS UNDER DEVELOPMENT" means, as of any date of
determination, any Project owned by Borrower or a Qualifying Investment
Affiliate (i) which is then treated as an asset under development under GAAP,
(ii) which is located in the United States of America (iii) which has been
preleased under binding leases to unaffiliated tenants to the extent of at
least seventy-five percent (75%) of the projected gross leasable area of such
Project and (iv) which has been designated by Borrower in a written notice to
Administrative Agent as a "Preleased Asset Under Development" for purposes of
this Agreement, with the land and improvements being valued at then-current
book value, as determined in accordance with GAAP, provided however, (a) in
no event shall any Project be included in such category of "Preleased Assets
Under Development" for more than two hundred seventy (270) days after
construction of such asset commenced and (b) upon written designation to
Administrative Agent delivered during such 270-day
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period, any Project which has previously been designated as a "Preleased
Asset Under Development", shall be removed from such category. Upon the
earlier to occur of (x) the expiration of any above-described 270-day period
or (y) Administrative Agent's receipt of Borrower's written designation in
accordance with (b) above, any Project which has been designated a "Preleased
Asset Under Development" shall automatically lose such designation (effective
as of the next determination date) for the purpose of determining Market
Capitalization.
"PROJECT" means any Property owned or operated by the Borrower or any
Subsidiary or Investment Affiliate and operated or intended to be operated as
an industrial or warehouse property.
"PROPERTY" means each parcel of real property owned (including leasehold
interests) or operated by the Borrower, any Subsidiary or Investment
Affiliate.
"PROPERTY BREACH" is defined in SECTION 7.30.
"PROPERTY OPERATING INCOME" means, with respect to any Property owned by
Borrower, any Subsidiary or any Investment Affiliate, for any period,
earnings from rental operations (excluding straight lined rents) after
deduction for ground lease rents (computed in accordance with GAAP but
without deduction for reserves) attributable to such Property plus
depreciation, amortization and interest expense for such period, and, if such
period is less than a year, adjusted by straight lining various ordinary
operating expenses which are payable less frequently than once during every
such period (e.g. real estate taxes and insurance).
"PURCHASER" is defined in SECTION 13.3.1.
"QUALIFIED LENDER" is defined in SECTION 13.3.1.
"QUALIFYING INVESTMENT AFFILIATE" means (a) any Subsidiary or Investment
Affiliate with respect to which (i) the Borrower or one of its Wholly-Owned
Subsidiaries has management control of the Subsidiary or Investment Affiliate
and each of its assets and (ii) the Borrower or such Wholly-Owned Subsidiary,
as the case may be, is not subject to restrictions contained in the
organizational documents of any of such entities (or any such restrictions
have expired) on its ability to sell or finance the real property owned by
such Subsidiary or Investment Affiliate or its interest in the Subsidiary or
Investment Affiliate, and (b) CRS, (c) CenterPoint Equipment Capital
Corporation, an Illinois corporation, (d) CDC, (e) CenterPoint Resources
Corporation, an Illinois corporation, (f) CenterPoint Realty Management
Corporation, (g) CP Realty Management Co. I, and (h) CenterPoint ▇'▇▇▇▇
Limited Liability Company provided that the entities described in clauses (b)
through (e) inclusive do not materially change the nature of their current
business or operations and Borrower retains a direct or indirect 95% or more
ownership interest in such entities. In no event shall a Subsidiary or
Investment Affiliate be a Qualifying Investment Affiliate if it has
Indebtedness which is recourse to the Subsidiary or Investment Affiliate
other than Indebtedness to the
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Borrower.
"QUALIFIED MORTGAGE" means a first or second mortgage held by Borrower
on any real estate asset operated or intended to be operated as an industrial
property.
"REGISTER" is defined in SECTION 13.7.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal Reserve
System.
"REIMBURSEMENT OBLIGATIONS" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or
in respect of the Facility Letters of Credit.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event, provided, however, that a failure to
meet the minimum funding standard of Section 412 of the Code and of Section
302 of ERISA shall be a Reportable Event regardless of the issuance of any
such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment (not held by Defaulting Lenders who are not
entitled to vote) or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the aggregate unpaid
principal amount of the outstanding Advances (not held by Defaulting Lenders
who are not entitled to vote).
"RESERVE REQUIREMENT" means, with respect to a LIBOR Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is in effect
on such day, as prescribed by the Federal Reserve Board or other governmental
authority or agency having jurisdiction with respect thereto for determining
the maximum reserves (including, without limitation, basic, supplemental,
marginal and emergency reserves) for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D) maintained by a member bank
of the Federal Reserve System.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SENIOR LOANS" as defined in SECTION 11.15.
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"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SUBSIDIARY" means a corporation, partnership or other entity of which
shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity
are at the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
Borrower, and provided such corporation, partnership or other entity is
consolidated with Borrower for financial reporting purposes under GAAP.
"SUBSTANTIAL PORTION" means, with respect to the Property of the
Borrower or its Subsidiaries, Property which represents more than 10% of the
Market Capitalization.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SWING LINE LENDER" shall mean the Lender agreed upon by Borrower and
the designated Swing Line Lender to provide Swing Line Loans. The initial
Swing Line Lender is the Administrative Agent, in its capacity as a Lender.
"SWING LINE LOANS" means Loans of up to $10,000,000 made by the Swing
Line Lender in accordance with SECTION 2.13 hereof.
"TOTAL LIABILITIES" means all Indebtedness plus all other GAAP
liabilities of the Borrower and its Subsidiaries.
"TOTAL PROPERTY OPERATING INCOME" means the sum of (i) Property
Operating Income for each Property owned (including leaseholds) by Borrower
and its Subsidiaries, and (ii) (without redundancy) the Borrower's pro rata
share (based on economic interest) of Property Operating Income from Property
owned (including leaseholds) by Investment Affiliates. The earnings from
rental operations shall be adjusted to include pro forma earnings (as
substantiated to the reasonable satisfaction of the Administrative Agent) for
an entire quarter for any Property acquired or placed in service during the
quarter and to exclude earnings during such quarter from any Property not
owned as of the end of the quarter.
"TRANSFEREE" is defined in SECTION 13.5.
"TYPE" means, with respect to any Advance, its nature as a CBR Advance
or a LIBOR Advance.
"UNENCUMBERED ASSET" means, with respect to any Property located in the
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇ and wholly owned by Borrower or any Qualifying Investment
Affiliate (provided that leasehold interests shall be included only if such
interest is pursuant to a Financeable Ground Lease) which is in service, at
any date of determination, the circumstance that such asset on such date (a)
is not subject to any Liens other than those in favor of the Lenders
pertaining to this Facility or claims (including restrictions on
transferability or assignability) of any kind (including any such Lien, claim
or restriction imposed by the organizational documents of any Qualifying
Investment Affiliate, but excluding the Permitted Liens described in SECTION
7.16(i)-(v)), (b) is not subject to any agreement (including (i) any
agreement governing Indebtedness incurred in order to finance or refinance
the acquisition of such asset, and (ii) if applicable, the organizational
documents of any Qualifying Investment Affiliate) which prohibits or limits
the ability of the Borrower, or such Qualifying Investment Affiliate, as the
case may be, to create, incur, assume or suffer to exist any Lien upon any
assets or Capital Stock of the Borrower, or any of its Qualifying Investment
Affiliates, (c) is not subject to any agreement (including any agreement
governing Indebtedness incurred in order to finance or refinance the
acquisition of such asset) which entitles any Person to the benefit of any
Lien (but excluding liens in favor of Lenders and other Permitted Liens) on
any assets or Capital Stock of the Borrower or any of its Qualifying
Investment Affiliates or would entitle any Person to the benefit of any Lien
(but excluding liens in favor of Lenders and the Permitted Liens described in
SECTION 7.16(i)-(v)) on such assets or Capital Stock upon the occurrence of
any contingency (including, without limitation, pursuant to an "equal and
ratable" clause), (d) is not the subject of a material environmental issue
and, if requested by the Administrative Agent, Borrower shall provide a
current or updated supplemental environmental investigative report which may
be an environmental site assessment conducted in accordance with the minimum
specifications in EXHIBIT H (or one which is not more than two years old for
Unencumbered Assets owned as of the Closing Date), (e) is not the subject of
any material architectural/engineering issue and, if requested by the
Administrative Agent, Borrower shall provide a current engineering report (or
one that is no more than two years old for Unencumbered Assets owned as of
the Closing Date), and (f) is materially compliant with property related
representations and covenants contained in SECTION 6.24 hereof. No Property
of a Qualifying Investment Affiliate shall be deemed to be unencumbered
unless (i) both such Property and all Capital Stock of such Qualifying
Investment Affiliate held by the Borrower is unencumbered, (ii) none of the
events described in SECTIONS 8.7, 8.8 or 8.9 has occurred with respect to
such Qualifying Investment Affiliate (without regard to its Market
Capitalization or whether its Indebtedness is recourse) and (iii) the
aggregate Value of Unencumbered Assets attributable to Properties owned by
Qualifying Investment Affiliates does not exceed 10% of the total Value of
Unencumbered Assets except that Properties owned by a Qualifying Investment
Affiliate shall not be counted toward such 10% cap if the Qualifying
Investment Affiliate has become a co-obligor or guarantor on the Facility
(with liability limited to the applicable Unencumbered Asset by executing and
delivering to the Administrative Agent a guaranty in form acceptable to the
Required Lenders) or if the Borrower's interest in such Qualifying Investment
Affiliate has been validly pledged for the benefit of the Lenders so,
pursuant to documents in form and substance reasonably satisfactory to the
Required Lenders, that the Lenders can succeed
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to all of the Borrower's rights with respect to such Qualifying Investment
Affiliate.
"UNFUNDED LIABILITIES" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
determined under Section 4001(a)(18)(A) of ERISA exceeds the fair market
value of all such Plan assets allocable to such benefits determined as of the
then most recent valuation date for such Plans.
"UNMATURED DEFAULT" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default, other than the
occurrence of an event under SECTION 7.14 during the grace period provided
therein.
"UNRESTRICTED CASH AND CASH EQUIVALENTS" means, as of any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash and
(b) the aggregate amount of Unrestricted Cash Equivalents (valued at the fair
market value). As used in this definition, "UNRESTRICTED" means the
specified asset is not subject to any Liens or claims of any kind in favor of
any Person.
"VALUE OF QUALIFIED MORTGAGES" means the sum of the value of each
Qualified Mortgage which shall be the lesser of (i) the outstanding principal
balance of such Qualified Mortgage at the time of any determination thereof,
or (ii) 85% of the value of the collateral encumbered by such Qualified
Mortgage (less the outstanding balance of the first mortgage if the Qualified
Mortgage is a second mortgage) determined by capitalizing the operating
income of such collateral, computed in the same manner as the Property
Operating Income at 9.5%, provided that the aggregate principal balance of
all Qualified Mortgages included in this determination shall not exceed
$50,000,000.
"VALUE OF UNENCUMBERED ASSETS" means, as of the end of a quarter, the
sum of (a) the value of all Unencumbered Assets wholly owned by the Borrower,
PLUS (b) the allocable share based on Borrower's economic interest in the
value of the Unencumbered Assets owned by Qualifying Investment Affiliates,
PLUS (c) the amount of Unrestricted Cash and Cash Equivalents owned by
Borrower, PLUS (d) the allocable share based on Borrower's economic interest
in the amount of Unrestricted Cash and Cash Equivalents owned by a Qualifying
Investment Affiliate. Unencumbered Assets shall be valued by capitalizing at
a rate equal to the Applicable Cap Rate, the Property Operating Income from
each Property which is an Unencumbered Asset for such quarter less, without
duplication, an assumed management fee of 4% of gross revenues (excluding
tenant recoveries) and the assumed Capital Expenditure Reserve Amount. If a
Property is acquired during a quarter then Borrower shall be entitled to
include pro forma Property Operating Income from such Property for the entire
quarter in the foregoing calculation. If a Property is no longer owned as of
the last day of a quarter, then no value shall be included based on
capitalizing Property Operating Income from such Property.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly
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or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, association, joint venture or similar
business organization of which 100% of the ownership interests having
ordinary voting power and at least 95% of all other classes of ownership
interest shall at the time be so owned or controlled by such Person.
"YEAR 2000 ISSUES" means reasonably anticipated costs, problems and
uncertainties associated with the inability of certain computer applications
to effectively handle data including dates on and after January 1, 2000, as
such inability affects the business, operations and financial condition of
the Borrower and its Subsidiaries and of the Borrower's and its Subsidiaries'
material customers, suppliers and vendors.
"YEAR 2000 PROGRAM" is defined in SECTION 6.25.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDIT
2.1. COMMITMENT. From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, subject
to the terms and conditions set forth in this Agreement, to make Loans to the
Borrower from time to time in amounts not to exceed in the aggregate at any
one time outstanding the amount of such Lender's Commitment minus such
Lender's Percentage of Facility Letter of Credit Obligations and, minus such
Lender's Percentage of any outstanding Swing Line Loans. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow at any
time prior to the Facility Termination Date. The Commitments of each Lender
to lend hereunder shall expire on the Facility Termination Date.
2.2. FINAL PRINCIPAL PAYMENT AND EXTENSION OPTION. Any outstanding
Advances and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date. The Facility Termination Date can
be extended for one year upon notice to the Administrative Agent at least
ninety (90) days before the original Facility Termination Date if (i) no
Default has occurred and is continuing at the time of such notice and at the
time of the original Facility Termination Date, (ii) all of the Lenders agree
to such extension, and (iii) the Borrower pays an extension fee equal to
0.15% of the Aggregate Commitment at the time of the extension. If the
Borrower gives such notice to the Administrative Agent, the Administrative
Agent shall notify the Lenders within 10 days of receipt of such request.
The Lenders shall have 30 days after receipt of such notice to notify
Administrative Agent as to whether they accept or reject such extension
request and Administrative Agent shall notify Borrower at least 45 days prior
to the Facility Termination Date of the acceptance or rejection of the
Lenders of
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Borrower's request to extend the Facility Termination Date. If the foregoing
conditions are satisfied other than the condition requiring the consent of
all Lenders, then Borrower shall have the right to replace any Lender that
does not agree to the extension provided that: (a) Borrower notifies such
Lender that it has elected to replace such Lender and notifies such Lender
and the Administrative Agent of the identity of the proposed replacement
Lender at least 15 Business Days prior to the Facility Termination Date and
(b) the proposed replacement Lender is a Qualifying Lender. The Lender being
replaced shall assign its Percentage of the Aggregate Commitment and its
rights and obligations under this Facility to the replacement Lender pursuant
to an Assignment and the replacement Lender shall assume such Percentage of
the Aggregate Commitment and the related obligations under this Facility
prior to the Facility Termination Date. The purchase by the replacement
Lender shall be at par (plus all accrued and unpaid interest and any other
sums owed to such Lender being replaced hereunder) which shall be paid to the
Lender being replaced upon the execution and delivery of the Assignment and
no fee pursuant to SECTION 13.3.2(ii) shall be required.
2.3. RATABLE LOANS. Each Advance hereunder shall consist of Loans
made from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment except for Swing Line
Loans which shall be made by the Swing Line Lender in accordance with SECTION
2.13 and Competitive Bid Loans made in accordance with SECTION 2.14. The
ratable Advances may be CBR Advances, LIBOR Advances, Fixed Rate Advances, or
a combination thereof, selected by the Borrower in accordance with SECTIONS
2.9 and 2.10.
2.4. APPLICABLE MARGINS. The CBR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different Types of Advances shall vary from time to time in accordance with
the ratings from ▇▇▇▇▇'▇ and S&P for either Borrower's long-term unsecured
debt or this Facility. The applicable debt ratings and the Applicable
Margins are set forth in the table attached as EXHIBIT A. All margins and
fees change as and when the rating classification changes. In the event both
rating agencies have issued a rating and the rating agencies are split on the
rating for the Borrower's long-term unsecured debt or this Facility, the
lower rating shall, except as set forth below, be deemed to be the applicable
rating (e.g., if the Borrower's ▇▇▇▇▇'▇ long-term unsecured debt or this
Facility's rating is Baa1 and its S&P long-term unsecured debt or this
Facility's rating is BBB then the Applicable Margins shall be computed based
on the S&P rating). In the event that ▇▇▇▇▇'▇ and S&P issue split ratings on
the Borrower's long term unsecured debt, Borrower may obtain a third rating
from Duff & ▇▇▇▇▇▇ or Fitch and the higher of the ▇▇▇▇▇'▇ or S&P rating shall
be deemed applicable until the earlier of (i) 90 days after the date of the
occurrence of such split ratings or (ii) the date of the issuance of the
third rating by Duff & ▇▇▇▇▇▇ or Fitch. After 90 days, if a third rating has
not been issued, the lower of the ▇▇▇▇▇'▇ or S&P rating shall apply. In the
event ▇▇▇▇▇'▇ and S&P issue different
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ratings of the Borrower's long term unsecured debt and the Borrower obtains a
third rating which is different from the ▇▇▇▇▇'▇ and S&P ratings, the middle
rating of the three ratings shall be deemed the applicable rating. In the
event ▇▇▇▇▇'▇ and S&P issue different ratings on the Borrower's long term
unsecured debt and the Borrower obtains a third rating which is the
equivalent of the ▇▇▇▇▇'▇ or S&P rating, the third rating confirming either
the ▇▇▇▇▇'▇ or S&P rating, as the case may be, shall be deemed to be the
applicable rating. In the event either ▇▇▇▇▇'▇ or S&P has not issued a
rating, the rating from the agency that has issued its rating shall govern.
The Applicable Margins shall be adjusted effective on the next Business Day
following any change in the Borrower's (or the Facility's if applicable)
▇▇▇▇▇'▇ long-term unsecured debt rating and/or S&P's long-term unsecured debt
rating, as the case may be (provided that if Administrative Agent does not
receive notice of a change in rating within forty-five days after it occurs
then any reduction in Applicable Margin shall be effective only when such
notice is received). In the event of a rating agency downgrade, the Borrower
will receive a credit for any incremental borrowing cost should the rating
agency(ies) restore the higher rating within a ninety day period. In the
event that either S&P or ▇▇▇▇▇'▇ shall discontinue their ratings of the REIT
industry or the Borrower's long-term unsecured debt or this Facility, a
mutually agreeable substitute rating agency shall be selected by the Required
Lenders and the Borrower. If the Required Lenders and the Borrower cannot
agree on a substitute rating agency within forty-five (45) days of such
discontinuance, the Applicable Margin to be used for the calculation of
interest on Advances hereunder shall be Pricing Category 4 (as defined in
EXHIBIT A). Lenders acknowledge that the rating for Borrower's unsecured long
term debt may be issued even though Borrower has no outstanding unsecured
long term debt.
If a rating agency downgrade or discontinuance results in an increase in
the CBR Applicable Margin or the LIBOR Applicable Margin and if such increase
is reversed and the affected Applicable Margin is restored within ninety (90)
days thereafter, at the Borrower's request, the Borrower shall receive a
credit against interest next due the Lenders equal to interest accrued from
time to time during such period of downgrade or discontinuance and actually
paid by the Borrower on the Advances at the differential between such
Applicable Margins.
2.5. FACILITY FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (the "FACILITY FEE")
calculated at a per annum percentage ("FACILITY FEE RATE") of the total
Aggregate Commitment. The Facility Fee Rate shall vary from time to time
based on the Borrower's long term unsecured debt rating as set forth in the
table attached hereto as EXHIBIT A. The Facility Fee shall be paid quarterly
in arrears on the last day of each calendar quarter, beginning December 31,
1998 for the period from the date hereof to December 31, 1998.
2.6. OTHER FEES. The Borrower agrees to pay all other fees payable to
the Administrative Agent and the Arrangers pursuant to the Borrower's prior
letter agreements with them dated September 26, 1998.
2.7. MINIMUM AMOUNT OF EACH ADVANCE. Each LIBOR Advance shall be in
the minimum amount of $2,000,000 (and in multiples of $100,000 if in excess
thereof), and each CBR Advance shall be in the minimum amount of $1,000,000
(and in multiples of $100,000 if in excess thereof), provided, however, that
any CBR Advance may be in the
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amount of the unused Aggregate Commitment. Borrower acknowledges that any
LIBOR Advance not in a multiple of $750,000 or $1,000,000 may result in a
higher LIBOR Rate.
2.8. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all or any part of outstanding CBR Advances
or LIBOR Advances, upon two Business Days' prior notice to the Administrative
Agent and each Lender and each such prepayment shall be in a minimum amount
of $50,000.00 or in multiples thereof, provided that a LIBOR Advance may not
be paid prior to the last day of the applicable LIBOR Interest Period unless
Borrower pays the applicable Break-up Fee.
2.9. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
Unless Borrower and Lenders have agreed upon a Fixed Rate in accordance with
SECTION 2.15, the Borrower shall select the Type of Advance and, in the case
of each LIBOR Advance, the LIBOR Interest Period applicable to each Advance
from time to time. The Borrower shall give the Administrative Agent
irrevocable notice (a "BORROWING NOTICE") (i) not later than 10:00 a.m.
(Chicago time) at least one Business Day before the Borrowing Date of each
CBR Advance, (ii) not later than 10:00 a.m. (Chicago time) at least three
Business Days before the Borrowing Date for each LIBOR Advance, and (iii) not
later than 11:00 a.m. (Chicago time) on the Borrowing Date for each Swing
Line Loan, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected (which must be a CBR Advance in
the case of Swing Line Loans), and
(iv) in the case of each LIBOR Advance, the LIBOR Interest Period
applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in SECTION 5.2 and otherwise comply with the
conditions set forth in SECTION 5.2 for Advances. The Administrative Agent
shall provide each Lender by facsimile with a copy of each Borrowing Notice
and compliance certificate on the same Business Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent at the account specified pursuant to
ARTICLE XIV. The Lenders shall not be obligated to match fund their LIBOR
Advances. The Administrative Agent will promptly make the funds so received
from the Lenders available to the Borrower from the Administrative Agent's
aforesaid account.
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No LIBOR Interest Period may end after the Facility Termination Date
and, unless all of the Lenders otherwise agree in writing, in no event may
there be more than ten (10) different LIBOR Interest Periods for LIBOR
Advances outstanding at any one time.
2.10. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. CBR Advances
shall continue as CBR Advances unless and until such CBR Advances are
converted into LIBOR Advances. Each LIBOR Advance shall continue as a LIBOR
Advance until the end of the then applicable LIBOR Interest Period therefor,
at which time such LIBOR Advance shall be automatically converted into a CBR
Advance unless the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end of such LIBOR
Interest Period, such LIBOR Advance shall continue as a LIBOR Advance for the
same or another LIBOR Interest Period. Subject to the terms of SECTION 2.7,
the Borrower may elect from time to time to convert all or any part of an
Advance of any Type into any other Type of Advance; provided that any
conversion of any LIBOR Advance shall be made on, and only on, the last day
of the Interest Period applicable thereto unless Borrower pays the applicable
Break-up Fee. The Borrower shall give the Administrative Agent irrevocable
notice (a "CONVERSION/CONTINUATION NOTICE") of each conversion of an Advance
not later than 10:00 a.m. (Chicago time) at least one Business Day, in the
case of a conversion into a CBR Advance, or three Business Days, in the case
of a conversion into or continuation of a LIBOR Advance, prior to the date of
the requested conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a
conversion into or continuation of a LIBOR Advance, the
duration of the LIBOR Interest Period applicable thereto.
2.11. CHANGES IN INTEREST RATE, ETC. Each CBR Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a LIBOR Advance
into a CBR Advance pursuant to SECTION 2.10 to but excluding the date it is
paid or is converted into a LIBOR Advance pursuant to SECTION 2.10 hereof, at
a rate per annum equal to the CBR Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a CBR Advance will take
effect simultaneously with each change in the Corporate Base Rate. Each
LIBOR Advance shall bear interest from and including the first day of the
LIBOR Interest Period applicable thereto to (but not including) the last day
of such LIBOR Interest Period at the LIBOR Rate determined as applicable to
such LIBOR
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Advance.
2.12. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.9 or 2.10, during the continuance of a
Default or Unmatured Default, the Required Lenders may, at their option, by
written notice to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of SECTION 9.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that
no Advance may be made as, converted into or continued beyond its current
term as a LIBOR Advance. During the continuance of a Default the Required
Lenders may, at their option, by prior written notice to the Borrower (which
notice may be revoked at the option of the Required Lenders notwithstanding
any provision of SECTION 9.2 requiring unanimous consent of the Lenders to
changes in interest rates), declare that (i) each LIBOR Advance shall bear
interest for the applicable LIBOR Interest Period at the rate otherwise
applicable to such LIBOR Interest Period plus 2% per annum until such Default
shall have been cured and (ii) each CBR Advance shall bear interest at a rate
per annum equal to the CBR Rate otherwise applicable to the CBR Advance plus
2% per annum until such Default shall have been cured; provided that such
rates shall become applicable automatically without notice to the Borrower if
a Default occurs under SECTION 8.7 or SECTION 8.8.
2.13. SWING LINE LOANS. In addition to the other options available to
Borrower hereunder, up to $10,000,000 of the Swing Line Lender's commitment,
shall be available for Swing Line Loans subject to the following terms and
conditions. Swing Line Loans shall be made available for same day borrowings
provided that notice is given in accordance with SECTION 2.9 hereof. All
Swing Line Loans shall bear interest at the CBR Rate. In no event shall the
Swing Line Lender be required to fund a Swing Line Loan if it would increase
the total aggregate outstanding Loans by Swing Line Lender hereunder plus its
Percentage of Facility Letter of Credit Obligations to an amount in excess of
its Commitment. Upon request of the Swing Line Lender, each Lender
irrevocably agrees to purchase its Percentage of any Swing Line Loan made by
the Swing Line Lender regardless of whether the conditions for disbursement
are satisfied at the time of such purchase, including the existence of an
Event of Default hereunder provided no Lender shall be required to have total
outstanding Loans plus its Percentage of Facility Letters of Credit to be in
an amount greater than its Commitment. Such purchase shall take place on the
date of the request by Swing Line Lender so long as such request is made by
noon (Chicago time), otherwise on the Business Day following such request.
All requests for purchase shall be in writing. From and after the date it is
so purchased, each such Loan shall be treated as a Loan made by the
purchasing Lender and not by the selling Lender for all purposes under this
agreement, and shall no longer be considered a Swing Line Loan except that
all interest accruing on or attributable to such Loan for the period prior to
the date of such purchase shall be paid when due by the Borrower to the
Administrative Agent for the benefit of the Swing Line Lender and all such
amounts accruing on or attributable to such Loans for the period from and
after the date of such purchase shall be paid when due by the Borrower to the
Administrative Agent for the benefit of the purchasing Lender. If prior to
purchasing its Percentage in a Swing Line Loan one of the events described in
SECTION
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8.7 or 8.8 shall have occurred and such event prevents the consummation of
the purchase contemplated by preceding provisions, each Lender will purchase
an undivided participating interest in the outstanding Swing Line Loan in an
amount equal to its Percentage of such Swing Line Loan. From and after the
date of each Lender's purchase of its participating interest in a Swing Line
Loan, if the Swing Line Lender receives any payment on account thereof, the
Swing Line Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest
was outstanding and funded); provided, however, that in the event that such
payment was received by the Swing Line Lender and is required to be returned
to the Borrower, each Lender will return to the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it. No Swing Line
Loan shall be outstanding for more than five (5) days at a time and Swing
Line Loans shall not be outstanding for more than a total of ten (10) days
during any month.
2.14. COMPETITIVE BID LOANS.
(a) COMPETITIVE BID OPTION. In addition to ratable Advances
pursuant to SECTION 2.3, but subject to the terms and conditions of this
Agreement (including, without limitation the limitation set forth in SECTION
2.1 as to the maximum amount of all Loans not exceeding the Aggregate
Commitment), the Borrower may, as set forth in this SECTION 2.14, request the
Lenders, prior to the Facility Termination Date, to make offers to make
Competitive Bid Loans to the Borrower. Each Lender may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this SECTION
2.14. Competitive Bid Loans shall be evidenced by the Competitive Bid Notes.
In no event shall the aggregate of all Competitive Bid Loans outstanding at
any time exceed 40% of the Aggregate Commitment.
(b) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to
request offers to make Competitive Bid Loans under this SECTION 2.14, it
shall transmit to the Administrative Agent by telecopy a Competitive Bid
Quote Request substantially in the form of EXHIBIT C-1 hereto so as to be
received no later than (i) 10:00 a.m. (Chicago time) at least five Business
Days prior to the Borrowing Date proposed therein, in the case of a request
for a Competitive LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one
Business Day prior to the Borrowing Date proposed therein, in the case of a
request for an Absolute Rate specifying:
(i) the proposed Borrowing Date for the proposed Competitive
Bid Loan,
(ii) the requested aggregate principal amount of such
Competitive Bid Loan which must be at least $10,000,000 and an
integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes requested are to
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set forth a Competitive LIBOR Margin or an Absolute Rate, or both,
and
(iv) the LIBOR Interest Period, if a Competitive LIBOR Margin
is requested, or the Absolute Interest Period, if an Absolute Rate
is requested.
The Borrower may request offers to make Competitive Bid Loans for more than
one (but not more than five) Interest Period in a single Competitive Bid
Quote Request. No Competitive Bid Quote Request shall be given within five
Business Days (or such other number of days as the Borrower and the
Administrative Agent may agree) of any other Competitive Bid Quote Request.
A Competitive Bid Quote Request that does not conform substantially to the
form of EXHIBIT C-1 hereto shall be rejected, and the Administrative Agent
shall promptly notify the Borrower of such rejection by telecopy.
(c) INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in any
event before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to SECTION
2.14(b), the Administrative Agent shall send to each of the Lenders by
telecopy an Invitation for Competitive Bid Quotes substantially in the form
of EXHIBIT C-2 hereto, which shall constitute an invitation by the Borrower
to each Lender to submit Competitive Bid Quotes offering to make the
Competitive Bid Loans to which such Competitive Bid Quote Request relates in
accordance with this SECTION 2.14.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive
Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this SECTION 2.14(d) and must be submitted to the
Administrative Agent by telex or telecopy at its offices not later
than (a) 2:00 p.m. (Chicago time) at least four Business Days prior
to the proposed Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time) on the
proposed Borrowing Date, in the case of a request for an Absolute
Rate (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Administrative Agent
may agree); PROVIDED that Competitive Bid Quotes submitted by First
Chicago may only be submitted if the Administrative Agent or First
Chicago notifies the Borrower of the terms of the Offer or Offers
contained therein no later than 30 minutes prior to the latest time
at which the relevant Competitive Bid Quotes must be submitted by the
other Lenders. Subject to the Borrower's compliance with all other
conditions to disbursement herein, any Competitive Bid Quote of a
Lender so made shall be irrevocable except with the written consent
of the Administrative Agent given on the instructions of the
Borrower.
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(ii) Each Competitive Bid Quote shall be in substantially the
form of EXHIBIT C-3 hereto and shall in any case specify:
(1) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(2) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount (x) may be greater than, less than or equal to the
Commitment of the quoting Lender, (y) must be at least
$5,000,000 and an integral multiple of $1,000,000, and
(z) may not exceed the principal amount of Competitive
Bid Loans for which offers are requested,
(3) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid Loan,
(4) the minimum amount, if any, of the Competitive
Bid Loan which may be accepted by the Borrower, and
(5) the identity of the quoting Lender, provided
that such Competitive Bid Loan may be funded by such
Lender's Designated Lender as provided in Section
2.14(j), regardless of whether that is specified in the
Competitive Bid Quote.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(1) is not substantially in the form of EXHIBIT C-3
hereto or does not specify all of the information required by
SECTION 2.14(d)(ii),
(2) contains qualifying, conditional or similar
language, other than any such language contained in
EXHIBIT C-3 hereto,
(3) proposes terms other than or in addition to
those set forth in the applicable Invitation for
Competitive Bid Quotes, or
(4) arrives after the time set forth in SECTION
2.14(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to this
SECTION 2.14(d)(iii), then the Administrative Agent shall notify the
relevant
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Lender of such rejection as soon as practical.
(e) NOTICE TO BORROWER. The Administrative Agent shall promptly
notify the Borrower of the terms (i) of any Competitive Bid Quote submitted
by a Lender that is in accordance with SECTION 2.14(d) and (ii) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with
a previous Competitive Bid Quote submitted by such Lender with respect to the
same Competitive Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted solely to
correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote
Request and the respective principal amounts and Competitive LIBOR Margins or
Absolute Rate, as the case may be, so offered.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin or
(ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in the case of
a request for an Absolute Rate (or, in either case upon reasonable prior
notice to the Lenders, such other time and date as the Borrower and the
Administrative Agent may agree), the Borrower shall notify the Administrative
Agent of its acceptance or rejection of the offers so notified to it pursuant
to SECTION 2.14(e); PROVIDED, HOWEVER, that the failure by the Borrower to
give such notice to the Administrative Agent shall be deemed to be a
rejection of all such offers. In the case of acceptance, such notice (a
"COMPETITIVE BID BORROWING NOTICE") shall specify the aggregate principal
amount of offers for each Interest Period that are accepted. The Borrower
may accept any Competitive Bid Quote in whole or in part (subject to the
terms of SECTION 2.14(d)(iii)); PROVIDED that:
(i) the aggregate principal amount of all Competitive Bid Loans
to be disbursed on a given Borrowing Date may not exceed the
applicable amount set forth in the related Competitive Bid Quote
Request,
(ii) acceptance of offers may only be made on the basis of
ascending Competitive LIBOR Margins or Absolute Rates, as the case
may be, and
(iii) the Borrower may not accept any offer that is described
in SECTION 2.14(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
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(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
two or more Lenders with the same Competitive LIBOR Margins or Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of which
such offers are accepted shall be allocated by the Administrative Agent among
such Lenders as nearly as possible (in such multiples, not greater than
$1,000,000, as the Administrative Agent may deem appropriate) in proportion
to the aggregate principal amount of such offers PROVIDED, however, that no
Lender shall be allocated any Competitive Bid Loan which is less than the
minimum amount which such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of Competitive Bid
Loans shall be conclusive in the absence of manifest error. The
Administrative Agent shall promptly, but in any event on the same Business
Day, notify each Lender of its receipt of a Competitive Bid Borrowing Notice
and the principal amounts of the Competitive Bid Loans allocated to each
participating Lender.
(h) ADMINISTRATION FEE. The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 per each Competitive Bid
Quote Request transmitted by the Borrower to the Administrative Agent
pursuant to SECTION 2.14(b). Such administration fee shall be payable
monthly in arrears on the first Business Day of each month and on the
Maturity Date (or such earlier date on which the Aggregate Commitment shall
terminate or be cancelled) for any period then ending for which such fee, if
any, shall not have been theretofore paid.
(i) OTHER TERMS. Any Competitive Bid Loan shall not reduce the
Commitment of the Lender making such Competitive Bid Loan, and each such
Lender shall continue to be obligated to fund its full Percentage of all pro
rata Advances under the Facility. In no event can the aggregate amount of
all Competitive Bid Loans at any time exceed forty percent (40%) of the then
Aggregate Commitment. Competitive Bid Loans shall not be prepaid prior to
the end of the applicable Interest Period unless the Competitive Bid Lender
consents. Competitive Bid Loans may not be continued and, if not repaid at
the end of the Interest Period applicable thereto, shall (subject to the
conditions set forth in this Agreement) be replaced by new Competitive Bid
Loans made in accordance with this SECTION 2.14 or by ratable Advances in
accordance with SECTION 2.3.
(j) DESIGNATED LENDERS. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in Section
2.14(d)(ii)(5). Any Designated Lender which funds a Competitive Bid Loan
shall on and after the time of such funding become the obligee under such
Competitive Bid Loan and be entitled to receive payment thereof when due. No
Lender shall be relieved of its obligation to fund a Competitive Bid Loan,
and no Designated Lender shall assume such obligation, prior to the time such
Competitive Bid Loan is funded.
(k) NOTICE TO LENDERS. Administrative Agent shall provide to all
bidding Lenders a summary report of each competitive bid request including the
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amount and rate for each bid awarded.
2.15. FIXED RATE LOANS. In addition to the other interest rate options
provided herein, the Borrower may request a fixed rate ("Fixed Rate") on any
ratable Advance for up to one (1) year. The Fixed Rate shall be as quoted by
the Administrative Agent, subject to the approval of all of the Lenders. If
Borrower and Lenders agree to a Fixed Rate for all or a portion of the
advances outstanding hereunder, all the provisions contained herein for LIBOR
Advances shall be applicable to such Fixed Rate Advances with the Interest
Period being the period of time agreed to by Borrower and Lenders and the
LIBOR Rate being equal to the Fixed Rate agreed to by Borrower and Lenders.
2.16. METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
account specified pursuant to ARTICLE XIV, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by noon (Chicago time) on the date when
due and shall be applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent for the account
of any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds that the Administrative Agent received at
its account specified pursuant to ARTICLE XIV or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender
promptly. If any payment received by the Administrative Agent is not
delivered to a Lender by the closing of business on the same Business Day as
received by the Administrative Agent (with respect to payments received by
2:00 p.m., Chicago time) or the next Business Day (with respect to payments
received after 2:00 p.m., Chicago time), Lender shall receive from the
Administrative Agent interest at the Federal Funds Effective Rate on the
payment. The Administrative Agent is hereby authorized to charge the
specific account of the Borrower, if any, maintained with First Chicago for
such purpose, for each payment of principal, interest and fees as it becomes
due hereunder. The Borrower shall not have any liability to any Lender for
the failure of the Administrative Agent to promptly deliver funds to any such
Lender and shall be deemed to have made all such payments on the date the
respective payment is made by the Borrower to the Administrative Agent
provided that it is received by the Administrative Agent no later than the
time specified in this SECTION 2.16.
2.17. NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so
record shall not affect the Borrower's obligations under such Note. Each
Lender's books and records, including without limitation, the information, if
any, recorded by the Lender on the schedule attached to its Note, shall be
deemed to be PRIMA FACIA correct absent manifest error. The Borrower hereby
authorizes the Lenders and the Administrative Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer
funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be an Authorized
Officer. The Borrower
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agrees to deliver promptly to the Administrative Agent a written confirmation
signed by an Authorized Officer of each telephonic notice, if such
confirmation is requested by the Administrative Agent or any Lender. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.18. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Advance shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof, and at the Facility
Termination Date, whether by acceleration or otherwise. Interest accrued on
each LIBOR Advance shall also be payable on any date on which the LIBOR
Advance is prepaid (provided that nothing herein shall authorize a prepayment
which is not otherwise permitted hereunder). Interest and Commitment Fees
shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day
of any payment on the amount paid if payment is received prior to noon
(Chicago time) at the place of payment, unless such Advance is repaid on the
date that it was made. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.19. NOTIFICATION OF ADVANCES, INTEREST RATES AND PREPAYMENTS.
Promptly after receipt thereof (but in no event later than noon (Chicago
time) one Business Day prior to the proposed Borrowing Date for a CBR Advance
or the close of business three Business Days prior to the proposed Borrowing
Date for a LIBOR Advance) the Administrative Agent will notify each Lender of
the contents of each Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The Administrative Agent will
notify each Lender and the Borrower of the interest rate applicable to each
LIBOR Advance promptly upon determination of such interest rate and will give
each Lender and the Borrower prompt notice of each change in the Corporate
Base Rate and the Applicable Margin.
2.20. LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to
any such Lending Installation and the Notes shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to the Administrative Agent and the Borrower,
designate a Lending Installation through which Loans will be made by it and
for whose account Loan payments are to be made.
2.21. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan
or (ii) in the case of the Borrower, a payment of principal, interest or fees
to the Administrative Agent for the account of the Lenders,
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that it does not intend to make such payment, the Administrative Agent may
assume that such payment has been made. The Administrative Agent may, but
shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If the Borrower has not
in fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to the
Federal Funds Effective Rate for such day. If a Lender has not in fact made
such payment to the Administrative Agent, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Effective Rate for such
date. If such Lender does not make such payment upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such amount to the
Administrative Agent together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers
such amount at the rate applicable to the relevant Loan. Nothing in this
SECTION 2.21 shall be deemed to relieve any Lender from its obligation to
fulfill any portion of its Commitment hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
No Lender shall be responsible for any default by any other Lender in
its obligation to make Loans hereunder, and each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure
of any other Lender to fulfill its Commitment hereunder.
2.22. WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver
to each of the Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Lender is entitled to receive payments
under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes and an Internal Revenue Service Form W-8
or W-9 or applicable successor form, as the case may be, to establish an
exemption from United States backup withholding tax. Each Lender which so
delivers a Form 1001 or 4224 and Form W-8 or W-9 further undertakes to
deliver to each of the Borrower and the Administrative Agent two additional
copies of such form (or a successor form) on or before the date that such
form expires (currently, three successive calendar years for Form 1001 and
one calendar year for Form 4224) or becomes obsolete or after the occurrence
of any event requiring a change in the most recent forms so delivered by it,
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and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Administrative Agent, in each
case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes and is exempt from backup withholding, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form with respect to
it and such Lender advises the Borrower and the Administrative Agent that it
is not capable of receiving payments without any deduction or withholding of
United States federal income tax or is not exempt from backup withholding tax.
2.23. VOLUNTARY REDUCTION OF AGGREGATE COMMITMENT AMOUNT. Upon at least
five (5) Business Days' prior irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent, Borrower
shall have the right, without premium or penalty, to permanently reduce the
Aggregate Commitment provided that (a) Borrower may not reduce the Aggregate
Commitment below the Allocated Facility Amount at the time of such requested
reduction, (b) any such partial reduction shall be in the minimum aggregate
amount of Five Million Dollars (U.S. $5,000,000.00) or any integral multiple
of Five Million Dollars (U.S. $5,000,000.00) in excess thereof and (c)
Borrower may not reduce the Aggregate Commitment to an amount less than Fifty
Million Dollars (U.S. $50,000,000.00). Any reduction of the Aggregate
Commitment shall be applied pro rata to each Lender's Commitment.
2.24. INCREASE IN AGGREGATE COMMITMENT AMOUNT. So long as no Default
has occurred and is continuing, the Borrower shall have the right from time
to time to increase the Aggregate Commitment up to a maximum of $350,000,000
by obtaining the Administrative Agent's prior written approval and either
adding new banks as Lenders or obtaining the agreement, which shall be at
such Lender's or Lenders' sole discretion, of one or more of the then-current
Lenders to increase its or their Commitments. Such increases shall be
evidenced by the execution and delivery of an Amendment Regarding Increase in
the form of EXHIBIT J attached hereto by the Borrower, the Administrative
Agent and the new bank or existing Lender providing such additional
Commitment, a copy of which shall be forwarded to each Lender by the
Administrative Agent promptly after execution thereof. On the effective date
of each such increase in the Aggregate Commitment, the Borrower and the
Administrative Agent shall cause the new or existing Lenders providing such
increase, by either funding more than its or their Percentage of new ratable
Advances made on such date or purchasing shares of outstanding ratable Loans
held by the other Lenders or a combination thereof, to hold its or their
Percentage of all ratable Advances outstanding at the close of business on
such day; provided that Borrower shall pay any selling Lender funding losses
to the same extent as would be required under Section 4.4 in respect of a
prepayment. The Lenders agree to cooperate in any required sale and purchase
of outstanding ratable Advances to achieve such result. In no event will
such new or existing Lenders providing the increase be required to fund or
purchase a portion of any Competitive Bid Loan or Swing Line Loan to comply
with this Section on such date. In no event
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shall the Aggregate Commitment exceed $350,000,000 without the approval of
all of the Lenders.
2.25 USURY. This Agreement and the Note are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject
any Lender (including the Swing Line Lender) to either civil or criminal
liability as a result of being in excess of the Maximum Legal Rate. If by
the terms of this Agreement or the Loan Documents, Borrower is at any time
required or obligated to pay interest on the principal balance due hereunder
at a rate in excess of the Maximum Legal Rate, the interest rate or the
Default Rate, as the case may be, shall be deemed to be immediately reduced
to the Maximum Legal Rate and all previous payments in excess of the Maximum
Legal Rate shall be deemed to have been payments in reduction of principal
and not on account of the interest due hereunder. All sums paid or agreed to
be paid to Lender for the use, forbearance, or detention of the sums due
under the Loan, shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the Maximum Legal Rate of interest from
time to time in effect and applicable to the Loan for so long as the Loan is
outstanding.
2.26 APPLICATION OF MONEYS RECEIVED. All moneys collected or received
by the Administrative Agent on account of the Facility directly or
indirectly, shall be applied in the following order of priority:
(i) to the payment of all reasonable costs incurred in the
collection of such moneys of which the Administrative Agent
shall have given notice to the Borrower;
(ii) to the reimbursement of any yield protection due to the
Lenders in accordance with SECTION 4.1;
(iii) to the payment of any fee due pursuant to SECTION 3.8(b) in
connection with the issuance of a Facility Letter of Credit
to the Issuing Bank, to the payment of the Facility Fee to
the Lenders, if then due, in accordance with their
Percentages and to the payment of the Administrative Agent's
Fee to the Administrative Agent if then due;
(iv) (a) in case the entire unpaid principal of the Facility shall
not have become due and payable, the whole amount received as
interest and Facility Letter of Credit Fee then due to the
Lenders (other than a Defaulting Lender) as their respective
Percentages appear (except to the extent there are Swing Line
Loans or Competitive Bid Loans outstanding in which event the
full amount of interest attributable to the Swing Line Loans
and Competitive Bid Loans shall be payable to the Swing Line
Lender and Competitive Bid Lenders,
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respectively, unless the Swing Line Lender or Competitive
Bid Lender shall be a Defaulting Lender), together with
the whole amount, if any, received as principal first to
the Swing Line Lender, unless the Swing Line Lender shall
be a Defaulting Lender, to repay any outstanding Swing
Line Loans and then to the Lenders as their respective
Funded Percentages appear, or (b) in case the entire
unpaid principal of the Facility shall have become due and
payable, as a result of a Default or otherwise, to the
payment of the whole amount then due and payable on the
Loan for principal, together with interest thereon at the
Default Rate or the interest rate, as applicable, to the
Swing Line Lender, unless the Swing Line Lender shall be a
Defaulting Lender, for all such amounts due in connection
with Swing Line Loans and then to the Lenders (other than
a Defaulting Lender) as their respective Funded
Percentages appear until paid in full; and then to the
Letter of Credit Collateral Account until the full amount
of Facility Letter of Credit Obligations is on deposit
therein; and
(v) to the payment of any sums due to each Defaulting Lender as
their respective Percentages appear (provided that
Administrative Agent shall have the right to set-off against
such sums any amounts due from such Defaulting Lender).
ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
3.1. OBLIGATION TO ISSUE. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank hereby agrees to issue for the
account of Borrower, one or more Facility Letters of Credit in accordance
with this ARTICLE III, from time to time during the period ending on the
Business Day prior to the Facility Termination Date.
3.2. TYPES AND AMOUNTS. The Issuing Bank shall not except with the
prior written consent of all Lenders:
(i) issue any Facility Letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit issued by such
Issuing Bank, after giving effect to the Facility Letter of Credit
requested hereunder, shall exceed any limit imposed by law or regulation
upon such Issuing Bank provided, in such event, the Borrower shall have the
right to select (with the approval of the alternate Issuing Bank but not
the other Lenders) an alternate Issuing Bank which shall be one of the
Lenders;
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(ii) issue any Facility Letter of Credit if, after giving effect
thereto, the aggregate Facility Letter of Credit Obligations would exceed
$10,000,000 or the Allocated Facility Amount would exceed the Aggregate
Commitment;
(iii) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such date, to
a date which is after the Business Day immediately preceding the Facility
Termination Date; or
(iv) issue any Facility Letter of Credit having an expiration date
which is more than fifteen (15) months after the date of its issuance.
3.3. CONDITIONS. In addition to being subject to the satisfaction of
the conditions contained in SECTION 5.2 hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may reasonably prescribe such
documents and materials as may be reasonably required pursuant to the terms
of the proposed Facility Letter of Credit (it being understood that if any
inconsistency exists between such documents and the Loan Documents, the
terms of the Loan Documents shall control) and the proposed Facility Letter
of Credit shall be reasonably satisfactory to the Issuing Bank as to form
and content;
(ii) as of the date of issuance, no order, judgment or decree of
any court, arbitrator or governmental authority shall purport by its terms
to enjoin or restrain the Issuing Bank from issuing the requested Facility
Letter of Credit and no law, rule or regulation applicable to the Issuing
Bank and no request or directive (whether or not having the force of law)
from any governmental authority with jurisdiction over the Issuing Bank
shall prohibit or request that the Issuing Bank refrain from the issuance
of Letters of Credit generally or the issuance of the requested Facility
Letter or Credit in particular, provided, in such event, the Borrower shall
have the right to select an alternate Issuing Bank which shall be one of
the Lenders; and
(iii) there shall not exist any Default or Unmatured Default.
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3.4. PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least five (5) Business Days' prior written notice of
any requested issuance of a Facility Letter of Credit under this Agreement (a
"LETTER OF CREDIT REQUEST") (except that, in lieu of such written notice, the
Borrower may give the Issuing Bank and the Administrative Agent telephonic
notice of such request if confirmed in writing by delivery to the Issuing
Bank and the Administrative Agent (i) by the close of business on such day
(A) of a telecopy of the written notice required hereunder which has been
signed by an Authorized Officer, or (B) of a telex containing all information
required to be contained in such written notice and (ii) promptly (but in no
event later than the requested date of issuance) of the written notice
required hereunder containing the original signature of an Authorized
Officer); such notice shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"ISSUANCE DATE");
(3) the date on which such requested Facility Letter of Credit is
to expire which date (exclusive of automatic extension
periods so long as the Facility Letter of Credit gives the
Issuing Bank the right to issue a notice that the expiration
date will not be extended) shall be a Business Day and shall
in no event be later than the earlier of fifteen months after
the Issuance Date and the Business Day immediately preceding
the Facility Termination Date;
(4) the purpose for which such Facility Letter of Credit is to be
issued (such purpose shall comply with the requirements of
SECTION 7.2);
(5) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
(6) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued, which
shall be subject to the reasonable approval of the Issuing Bank and
Administrative Agent. Such notice, to be effective, must be received by such
Issuing Bank and the Administrative Agent not later than 2:00 p.m. (Chicago
time) on the last Business Day on which notice can be given under this
SECTION 3.4(a). Administrative Agent shall promptly but in no event later
than three (3) Business Days prior to the Issuance Date give a copy of the
Letter of Credit Request to
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the other Lenders. Borrower shall also deliver the compliance certificate
required in SECTION 5.2 together with each Letter of Credit Request.
(b) Subject to the terms and conditions of this ARTICLE III
and provided that the applicable conditions set forth in SECTION 5.2 hereof
have been satisfied, such Issuing Bank shall, on the Issuance Date, issue a
Facility Letter of Credit on behalf of the Borrower in accordance with the
Letter of Credit Request and the Issuing Bank's usual and customary business
practices unless the Issuing Bank has actually received (i) written notice
from the Borrower specifically revoking the Letter of Credit Request with
respect to such Facility Letter of Credit, or (ii) written or telephonic
notice from the Administrative Agent stating that the issuance of such
Facility Letter of Credit would violate SECTION 3.2.
(c) The Issuing Bank shall give the Administrative Agent and
the Borrower written or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Facility Letter of Credit (the
"ISSUANCE NOTICE") and Administrative Agent shall promptly give a copy of the
Issuance Notice to the other Lenders.
(d) The Issuing Bank shall not extend or amend any Facility
Letter of Credit (other than an automatic extension) unless the requirements
of this SECTION 3.4 are met as though a new Facility Letter of Credit was
being requested and issued.
3.5. REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(a) The Issuing Bank shall promptly notify the Borrower and
the Administrative Agent of any draw under a Facility Letter of Credit, and
the Administrative Agent shall promptly notify the other Lenders that such
draw has occurred. Any such draw shall constitute an Advance of the Facility
in the amount of the Reimbursement Obligation with respect to such Facility
Letter of Credit and shall bear interest from the date of the relevant
drawing(s) under the pertinent Facility Letter of Credit at a rate selected
by Borrower in accordance with SECTION 2.10 hereof; provided that if any
Default or an Unmatured Default involving the payment of money exists at the
time of any such drawing(s), then the Borrower shall reimburse the Issuing
Bank for drawings under a Facility Letter of Credit issued by the Issuing
Bank no later than the next succeeding Business Day after the payment by the
Issuing Bank and until repaid such Reimbursement Obligation shall bear
interest from the date funded at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing
Bank under or in connection with any Facility Letter of Credit, if taken or
omitted in the absence of willful misconduct or gross negligence, shall not
put the Issuing Bank under any resulting liability to Borrower or any Lender
or, provided that such Issuing Bank has complied with the procedures
specified in SECTION 3.4, relieve a Lender of its obligations hereunder to
the Issuing Bank. In determining whether to pay under any Facility Letter of
Credit, the Issuing Bank shall have no obligation relative to the Lenders
other than to
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confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered in compliance, and that they appear to
comply on their face, with the requirements of such Letter of Credit.
3.6. PARTICIPATION.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in
SECTION 3.4, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuing Bank, without
recourse, representation or warranty, an undivided interest and participation
equal to such Lender's Percentage in such Facility Letter of Credit
(including, without limitation, all obligations of the Borrower with respect
thereto) and any security therefor or guaranty pertaining thereto. Each
Lender's obligation to make further Loans to the Borrower (other than any
payments such Lender is required to make under subparagraph (b) below) or
issue any letters of credit on behalf of Borrower shall be reduced by such
Lender's Percentage of the undrawn portion of each Facility Letter of Credit
outstanding.
(b) In the event that the Issuing Bank makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid such
amount to the Issuing Bank pursuant to SECTION 3.7 hereof, the Issuing Bank
shall promptly notify the Administrative Agent, which shall promptly notify
each Lender of the same, and each Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of the Issuing Bank the
amount of such Lender's Percentage of the unreimbursed amount of such
payment, and the Administrative Agent shall promptly pay such amount to the
Issuing Bank. Notwithstanding the foregoing, unless Borrower shall notify
Administrative Agent of Borrower's intent to repay the Reimbursement
Obligation on the date of the related drawing under any Facility Letter of
Credit, such Reimbursement Obligation shall simultaneously with such drawing
be converted to and become a CBR Loan as set forth in SECTION 2.10. The
failure of any Lender to make available to the Administrative Agent for the
account of any Issuing Bank its Percentage of the unreimbursed amount of any
such payment shall not relieve any other Lender of its obligation hereunder
to make available to the Administrative Agent for the account of such Issuing
Bank its Percentage of the unreimbursed amount of any payment on the date
such payment is to be made, but no Lender shall be responsible for the
failure of any other Lender to make available to the Administrative Agent its
Percentage of the unreimbursed amount of any payment on the date such payment
is to be made. Any Lender which fails to make any payment required pursuant
to this SECTION 3.6(B) shall be deemed to be a Defaulting Lender hereunder.
(c) If the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing Bank
shall promptly pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Lender which has funded its participating interest
therein, in immediately available funds, an amount equal to such Lender's
Percentage thereof.
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(d) Upon the request of the Administrative Agent or any
Lender, an Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which that Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of each Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable,
not subject to any counterclaim, set-off, qualification or exception
whatsoever other than a failure of any such Issuing Bank to comply with the
terms of this Agreement relating to the issuance of such Facility Letter of
Credit and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances.
3.7. PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to such Issuing Bank under or
in connection with any Facility Letter of Credit when due irrespective of any
claim, set-off, defense or other right which the Borrower may have at any
time against any Issuing Bank or any other Person, under all circumstances,
including without limitation any of the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Facility Letter of Credit or any transferee of any
Facility Letter of Credit (or any Person for whom any such transferee
may be acting), the Administrative Agent, the Issuing Bank, any
Lender, or any other Person, whether in connection with this
Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower and the beneficiary
named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect of any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
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(b) In the event any payment by the Borrower received by the
Issuing Bank or the Administrative Agent with respect to a Facility Letter of
Credit and distributed by the Administrative Agent to the Lenders on account
of their participations is thereafter set aside, avoided or recovered from
the Administrative Agent or the Issuing Bank in connection with any
receivership, liquidation, reorganization or bankruptcy proceeding, each
Lender which received such distribution shall, upon demand by the
Administrative Agent, contribute such Lender's Percentage of the amount set
aside, avoided or recovered together with interest at the rate required to be
paid by the Issuing Bank or the Administrative Agent upon the amount required
to be repaid by the Issuing Bank or the Administrative Agent.
3.8. COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent, for
the ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "FACILITY LETTER OF CREDIT FEE") with
respect to each Facility Letter of Credit that is equal to the LIBOR
Applicable Margin in effect from time to time. The Facility Letter of Credit
Fee relating to any Facility Letter of Credit shall be due and payable in
arrears in equal installments on the first Business Day of each month
following the issuance of any Facility Letter of Credit and, to the extent
any such fees are then due and unpaid, on the Facility Termination Date. The
Administrative Agent shall promptly remit such Facility Letter of Credit
Fees, when paid, to the other Lenders in accordance with their Percentages
thereof. The Borrower shall not have any liability to any Lender for the
failure of the Administrative Agent to promptly deliver funds to any such
Lender and shall be deemed to have made all such payments on the date the
respective payment is made by the Borrower to the Administrative Agent,
provided such payment is received by the time specified in SECTION 2.16
hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.15% of the face amount of
each Facility Letter of Credit, payable by the Borrower on the Issuance Date
for each such Facility Letter of Credit. The Issuing Bank shall also be
entitled to receive its reasonable out-of-pocket costs and the Issuing Bank's
standard charges of issuing, amending and servicing Facility Letters of
Credit and processing draws thereunder.
3.9. LETTER OF CREDIT COLLATERAL ACCOUNT. The Borrower hereby agrees that
it will, if required pursuant to SECTION 9.1, maintain a special collateral
account (the "LETTER OF CREDIT COLLATERAL ACCOUNT") at the Administrative
Agent's office at the address specified pursuant to SECTION 14.1, in the name of
the Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders, and in which the Borrower shall have no
interest other than as set forth in SECTION 9.1. Such Letter of Credit
Collateral Account shall be funded to the extent required by SECTION 9.1. In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a properly perfected security interest in
and to the Letter of Credit Collateral Account, any funds that may hereafter be
on deposit in such
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account and the proceeds thereof.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1. YIELD PROTECTION. If, after the date hereof, any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from the Borrower (excluding federal, state and local income,
franchise or similar taxes on the overall income of any
Lender or applicable Lending Installation), or changes the
basis of taxation of payments to any Lender in respect of its
Loans, Facility Letters of Credit or other amounts due it
hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to LIBOR Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining loans or
reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with loans, or requires
any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of loans held,
Letters of Credit issued or participated in, or interest
received by it, by an amount deemed material by such Lender,
then, within 15 days of written demand by such Lender
pursuant to SECTION 4.5,
(iv) the Borrower shall pay such Lender that portion of such
increased expense incurred or reduction in an amount received
which such Lender determines is attributable to making,
funding and maintaining its Loans and its Commitment.
4.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender reasonably
determines the amount of capital required or expected to be maintained by
such
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Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change (as hereinafter
defined), then, within fifteen days of written demand by such Lender pursuant
to SECTION 4.5, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion on such
increased capital which such Lender determines is attributable to this
Agreement, its Loans, its interest in the Facility Letters of Credit, or its
obligation to make Loans hereunder or participate in or issue Facility
Letters of Credit (after taking into account such Lender's policies as to
capital adequacy). "CHANGE" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or
change in any other law, rule, regulation, policy, guideline, interpretation,
or directive of any Governmental Authority having jurisdiction after the date
of this Agreement which affects the amount of capital required or reasonably
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means
(i) the risk-based capital guidelines in effect in the United States on the
date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"INTERNATIONAL CONVERGENCE OF CAPITAL MEASUREMENTS AND CAPITAL STANDARDS,"
including transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
4.3. AVAILABILITY OF LIBOR ADVANCES. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive of any
Governmental Authority having jurisdiction, the Administrative Agent shall
suspend by written notice to Borrower the availability of LIBOR Advances and
require any LIBOR Advances to be repaid; or if the Required Lenders determine
that (i) deposits of a type or maturity appropriate to match fund LIBOR
Advances are not available, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances with respect to any
LIBOR Advances made after the date of any such determination, or (ii) an
interest rate applicable to a LIBOR Advance does not accurately reflect the
cost of making a LIBOR Advance, and, if for any reason whatsoever the
provisions of SECTION 4.1 are inapplicable, the Administrative Agent shall
suspend by written notice to Borrower the availability of LIBOR Advances with
respect to any LIBOR Advances made after the date of any such determination.
4.4. FUNDING INDEMNIFICATION. If any payment of a LIBOR Advance occurs
on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a LIBOR Advance
is not made on the date specified by the Borrower for any reason the Borrower
will indemnify each Lender (other than any Lender whose default was the
reason that the LIBOR Advance was not made on the date specified), for any
loss or cost incurred by it resulting therefrom, including,without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the LIBOR Advance upon Borrower's receipt of the written
notice pursuant to SECTION 4.5.
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4.5. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Loans and shall take other measures in its discretion to
reduce any liability of the Borrower to such Lender under SECTIONS 4.1 and
4.2 or to avoid the unavailability of a Type of a LIBOR Advance under SECTION
4.3, so long as such designation or other measure is not disadvantageous to
such Lender. Each Lender shall deliver a written statement of such Lender to
the Administrative Agent and to the Borrower as to the amount due, if any,
under SECTIONS 4.1, 4.2 or 4.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the
absence of manifest error. Determination of amounts payable under such
Sections in connection with a LIBOR Loan shall be calculated as though each
Lender funded its LIBOR Loan through the purchase of a deposit of the type
and maturity corresponding to the deposit used as a reference in determining
the LIBOR Rate applicable to such Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement shall be payable on demand after receipt by the Borrower of the
written statement. The obligations of the Borrower under SECTIONS 4.1, 4.2
and 4.4 shall survive payment of the Obligations and termination of this
Agreement for a period of one year.
4.6. LIMITATION ON BORROWER'S LIABILITY. The Borrower shall not be
obligated to compensate any Lender pursuant to SECTION 4.1, 4.2 or 4.4 for
any amounts attributable to a period more than one year prior to such
Lender's written notice under SECTION 4.5 of its intention to seek
compensation under SECTION 4.1, 4.2 or 4.4.
ARTICLE V
CONDITIONS PRECEDENT
5.1. INITIAL ADVANCE. The Lenders shall not be required to make the
initial Advance hereunder unless (a) the Borrower shall have paid all fees
then due and payable to the Lenders, the Documentation Agent, and the
Administrative Agent hereunder, and (b) the Borrower shall have furnished to
the Administrative Agent, in form and substance satisfactory to the Lenders
and their counsel and with sufficient copies for the Lenders, the following:
(i) The duly executed originals of the Loan Documents, including
the Notes, payable to the order of each of the Lenders, and
this Agreement;
(ii) Certified copies of the articles of incorporation, limited
partnership certificate, limited liability company agreement,
declaration of trust or other organizational document of the
Borrower, each Subsidiary
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and each Qualifying Investment Affiliate, to the extent
applicable, with all amendments and certified by the
appropriate governmental officer of the state of
organization as of a recent date;
(iii) Certificates of good standing for the Borrower, each
Subsidiary and each Qualifying Investment Affiliate certified
by the appropriate governmental officer of the state of
organization, and foreign qualification certificates for the
Borrower, certified by the appropriate governmental officer,
for each jurisdiction where an Unencumbered Asset is located
and each other jurisdiction where the failure to so qualify
or be licensed (if required) would have a Material Adverse
Effect;
(iv) Copies, certified by an officer of the Borrower, each
Subsidiary and each Qualifying Investment Affiliate of its
by-laws, partnership agreement, operating agreement or
similar document, to the extent applicable together with all
amendments thereto;
(v) An incumbency certificate, executed by an officer of the
Borrower, which shall identify by name and title and bear the
signature of the Persons authorized to sign the Loan
Documents and to make borrowings hereunder on behalf of the
Borrower, upon which certificate the Administrative Agent and
the Lenders shall be entitled to rely until informed of any
change in writing by the Borrower;
(vi) Copies, certified by the Secretary or Assistant Secretary, of
the Borrower's Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the Advances provided for
herein and the execution, delivery and performance of the
Loan Documents to be executed and delivered by the Borrower
hereunder;
(vii) A written opinion of the Borrower's counsel, addressed to the
Lenders in substantially the form of EXHIBIT D hereto;
(viii) A certificate, signed by an officer of the Borrower, stating
that on the Closing Date and on the initial Borrowing Date no
Default or Unmatured Default has occurred and is continuing
and that all representations and warranties of the Borrower
contained herein are true and correct as of the Closing Date
and initial Borrowing Date as and to the extent set forth
herein;
(ix) The most recent financial statements of the Borrower and a
certificate from an Authorized Officer of the Borrower that
no change in the Borrower's financial condition that would
have a
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Material Adverse Effect has occurred since June 30, 1998;
(x) UCC financing statement, judgment, and tax lien searches with
respect to the Borrower, any Subsidiary or Qualifying
Investment Affiliate from the States of Maryland and Illinois
and the counties in which Borrower, any Subsidiary or any
Qualifying Investment Affiliate owns properties;
(xi) Evidence of sufficient Unencumbered Assets (which evidence
may include pay-off letters (together with evidence of
payment or a direction of Borrower to use a portion of the
proceeds of the Advances to repay such Indebtedness),
mortgage releases and/or title policies) to assist the
Administrative Agent in determining the Borrower's compliance
with the covenants set forth in ARTICLE VII herein;
(xii) Written money transfer instructions, in substantially the
form of EXHIBIT G hereto, addressed to the Administrative
Agent and signed by an Authorized Officer, together with such
other related money transfer authorizations as the
Administrative Agent may have reasonably requested;
(xiii) Evidence that all parties whose consent is required for
Borrower to execute the Loan Documents have provided such
consents;
(xiv) Operating statements for each Property and other evidence of
income and expenses to assist the Administrative Agent in
determining Borrower's compliance with the covenants set
forth in ARTICLE VII herein;
(xv) A copy of the standard lease form generally used at the
Properties;
(xvi) Evidence that the insurance coverage required in SECTION 6.17
is in full force and effect; and
(xvii) Such other documents as any Lender or its counsel may have
reasonably requested, the form and substance of which
documents shall be acceptable to the parties and their
respective counsel.
5.2. CONDITIONS TO EACH ADVANCE, ISSUANCE OF FACILITY LETTER OF CREDIT
AND CONTINUATION/CONVERSION. The following conditions must be satisfied as a
condition precedent to the making of an Advance (including Swing Line Loans),
the issuance of a Facility Letter of Credit, or the continuation of a LIBOR
Advance or conversion of an existing Advance into a LIBOR Advance:
(i) There exists no Default or Unmatured Default;
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(ii) The representations and warranties contained in ARTICLE VI
are true and correct as of such Borrowing Date, Issuance
Date, or date of conversion and/or continuation as and to the
extent set forth therein, except to the extent any such
representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date and
except for Property Breaches, in which case the compliance
certificate shall contain a calculation of the financial
covenants with and without including the Property with
respect to which there is a Property Breach and demonstrate
compliance with such covenants both with and without
inclusion of such Property; and
(iii) All legal matters incident to the making of such Advance
shall be reasonably satisfactory to the Lenders and their
counsel.
Each Borrowing Notice, Letter of Credit Request, and
Conversion/Continuation Notice shall constitute a representation and warranty
by the Borrower that the conditions contained in SECTIONS 5.2(i) and (ii)
have been satisfied. Borrower shall also furnish a duly completed compliance
certificate in substantially the form of EXHIBIT E hereto (including all
schedules or exhibits if applicable) as a condition to making an Advance or
issuing a Facility Letter of Credit; provided that although the covenants in
SECTION 7.21 must be satisfied at all times (and any deviations therefrom
noted on the compliance certificate) the detailed calculations contained in
Schedule I of the compliance certificate shall be based on the most recent
quarterly information available.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that as of the date
hereof, and as of each Borrowing Date, Issuance Date and each conversion
and/or continuation (except as otherwise disclosed to and approved by the
Required Lenders):
6.1. EXISTENCE. It is duly organized, validly existing and in good
standing under the laws of the State of Maryland, with its principal place of
business in Chicago, Illinois, and is duly qualified as a foreign trust,
properly licensed (if required), in good standing and has all requisite
authority to conduct its business in each jurisdiction in which the laws of
such jurisdiction requires it to be so qualified, except where the failure to
be so qualified or to obtain such authority would not have a Material Adverse
Effect. Each of its Subsidiaries and Investment Affiliates is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite authority to conduct its business in each
jurisdiction in which it owns
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Property, and except where the failure to be so qualified or to obtain such
authority would not have a Material Adverse Effect, in each other
jurisdiction in which it conducts business.
6.2. AUTHORIZATION AND VALIDITY. It has the power and authority and
legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by it of the Loan
Documents and the performance of its obligations thereunder have been duly
authorized by proper proceedings, and the Loan Documents constitute legal,
valid and binding obligations of the Borrower enforceable against it in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
6.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by it of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate in any material respect any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on, respectively, the Borrower
or any of its Subsidiaries or Qualifying Investment Affiliates or any of such
entities' articles of incorporation, by-laws, certificate of limited
partnership, partnership agreement or operating agreement, as the case may
be, or the provisions of any indenture, declaration of trust, instrument or
agreement to which any entity is a party or is subject, or by which it, or
its Property, is bound, or conflict with or constitute a default thereunder,
or result in the creation or imposition of any Lien in, of or on the Property
of such entity pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by,
any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents.
6.4. FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE. The most recent
consolidated financial statements of the Borrower and its Subsidiaries
delivered to the Lenders prior to the date that this representation is made
were prepared in accordance with GAAP in effect on the date such statements
were prepared and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended. Since
the date of such financial statements, there has been no change in the
business, Property, results of operations or financial condition of the
Borrower and its Subsidiaries which have or could be reasonably expected to
have a Material Adverse Effect.
6.5. TAXES. It, its Subsidiaries, and its Qualifying Investment
Affiliates, have filed all United States federal tax returns and all other
tax returns which are required to be filed and have paid all taxes due
pursuant to said returns or pursuant to any
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assessment received by, respectively, the Borrower or any of its Subsidiaries
except such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. No tax liens have been filed and
no claims are being asserted with respect to any such taxes. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries and
to Borrower's knowledge, its Qualifying Investment Affiliates in respect of
any taxes or other governmental charges are adequate.
6.6. LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 7, there is no litigation, arbitration, governmental investigation
or proceeding pending or, to the knowledge of any of its officers, threatened
in a writing received by Borrower, a Subsidiary, or a Qualifying Investment
Affiliate, against or affecting the Borrower or any of its Subsidiaries or
Investment Affiliates which, if adversely determined, would have a Material
Adverse Effect. Except as disclosed on Schedule 8, it has no material
contingent obligations not provided for or disclosed in the financial
statements referred to in SECTION 7.1, which would have or could be
reasonably expected to have a Material Adverse Effect.
6.7. SUBSIDIARIES. SCHEDULE 1 hereto contains an accurate list of all
of the presently existing Subsidiaries and Investment Affiliates of Borrower,
setting forth their respective jurisdictions of formation, the percentage of
their respective Capital Stock owned by it or its Subsidiaries, Properties
owned and a description or its business and with respect to Investment
Affiliates, whether such Investment Affiliate constitutes a Qualifying
Investment Affiliate. All of the issued and outstanding shares of Capital
Stock of such Subsidiaries and, to Borrower's knowledge, such Investment
Affiliates have been duly authorized and issued and are fully paid and
non-assessable.
6.8. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred any withdrawal liability to
Multiemployer Plans in excess of $250,000 in the aggregate. If withdrawals
from all Multiemployer Plans occurred, the liability would not exceed
$250,000. Each Plan and, to Borrower's knowledge, each Multiemployer Plan,
complies in all material respects with all applicable requirements of law and
regulations and Borrower and all members of the Controlled Group have
complied in all material respects with ERISA and the Code with respect to
each Plan. No Reportable Event has occurred with respect to any Plan,
neither the Borrower nor any other member of the Controlled Group has
withdrawn from any Plan or Multiemployer Plan or initiated steps to do so,
and no steps have been taken to reorganize or terminate any Plan or to
Borrower's knowledge Multiemployer Plan. Neither Borrower nor any member of
the Controlled Group has any Plans or is a party to any collective bargaining
agreements other than those listed on Schedule 4. There is no accumulated
funding deficiency (as defined in Section 412 of the Code or Section 302 of
ERISA) outstanding which could reasonably be expected to have a Material
Adverse Effect, there is no lien outstanding under Section 412 of the Code or
Section 302 of ERISA with respect to assets of Borrower or any member of the
Controlled Group and no requirement to provide security under Section
401(a)(29) of
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the Code or Section 307 of ERISA has been or is reasonably expected to be
imposed on assets of Borrower or any member of the Controlled Group. No
liability to the PBGC or the Internal Revenue Service with respect to any
Plan or Multiemployer Plan or trust related thereto has been or is reasonably
expected to be incurred by Borrower or any member of the Controlled Group
which could reasonably be expected to have a Material Adverse Effect. Neither
Borrower nor any member of the Controlled Group has any contingent liability
with respect to any post-retirement benefits under any "welfare plan" (as
defined in Section 3(1) of ERISA) nor withdrawal liability or exit fee or
charge with respect to any such post-retirement benefits under any welfare
plan which could reasonably be expected to have a Material Adverse Effect.
Throughout the term of the Loan, Borrower is not and will not be an "employee
benefit plan" as defined in Section 3(32) of ERISA or a "governmental plan"
within the meaning of Section 3(3) of ERISA, none of the assets of Borrower
neither will constitute "plan assets" of one nor more plans for purposes of
Title I of ERISA and Borrower will not be subject to state statutes
applicable to Borrower regulating investments and fiduciary obligations with
respect to governmental plans.
6.9. ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of Borrower or any of its
Subsidiaries or Investment Affiliates to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of Borrower or any of its Subsidiaries or
Investment Affiliates to the Administrative Agent or any Lender will be, true
and accurate (taken as a whole) on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such
time. There are no facts, events or conditions directly and specifically
affecting Borrower, its Subsidiaries or any Investment Affiliate known to
Borrower and not disclosed to Administrative Agent and the Documentation
Agent or not disclosed in the information furnished by or on behalf of
Borrower, its Subsidiaries or Investment Affiliates, which, in the aggregate,
have or could be reasonably expected to have a Material Adverse Effect.
6.10. REGULATION U. It does not hold any margin stock (as defined in
Regulation U).
6.11. MATERIAL AGREEMENTS. Neither it nor any Subsidiary or Qualifying
Investment Affiliate is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
(i) any agreement to which it is a party, which default could have a Material
Adverse Effect, or (ii) except as disclosed on Schedule 9 any agreement or
instrument evidencing or governing Indebtedness.
6.12. COMPLIANCE WITH LAWS. Except as set forth in Schedule 6 it and
its Subsidiaries and Qualifying Investment Affiliates have complied in all
material respects, to Borrower's knowledge, with all applicable statutes,
rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having jurisdiction over
the conduct of their respective businesses or
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the ownership of their respective Property except where such non-compliance
would not have a Material Adverse Effect. Except as disclosed on Schedule 6,
neither Borrower, any Subsidiary, or any Qualifying Investment Affiliate, has
received any written notice to the effect that its operations are not in
material compliance with any of the requirements of applicable federal, state
and local environmental, health and safety statutes and regulations or the
subject of any federal or state remedial action responding to a release of
any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a Material Adverse Effect.
6.13. OWNERSHIP OF PROPERTIES. On the date of this Agreement, Borrower
and its Subsidiaries and Qualifying Investment Affiliates will have good
title, free of all Liens other than Permitted Liens, to all of the Property
and assets reflected in the financial statements as owned by it and as set
forth on SCHEDULE 2.
6.14. INVESTMENT COMPANY ACT. Neither Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
6.15. PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
6.16. SOLVENCY.
(i) Immediately after the Closing Date and immediately
following the making of each Loan and after giving effect to the application
of the proceeds of such Loans, (a) the fair value of the assets of the
Borrower and its Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated, contingent or otherwise,
of the Borrower and its Subsidiaries on a consolidated basis; (b) the present
fair saleable value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to
pay the probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a consolidated basis
will be able to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
the Borrower and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses in which they
are engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.
(ii) It does not intend to, or to permit any of its
Subsidiaries to incur debts beyond its ability to pay such debts as they
mature, taking into account the timing of
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and amounts of cash to be received by it or any such Subsidiary and the
timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
6.17. INSURANCE. It and its Subsidiaries and the Qualifying Investment
Affiliates carry insurance on their Properties with financially sound and
reputable insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar projects in localities where it and its
Subsidiaries and the Qualifying Investment Affiliates operate, including,
without limitation:
(i) Property and casualty insurance (including coverage for flood
and other water damage for any Property located in an area
identified by the Secretary of Housing and Urban Development
or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968
or the Flood Disaster Protection Act of 1973, as amended, or
any successor law) in the amount of 100% of the replacement
cost of the improvements at the Property with a waiver of
depreciation;
(ii) Loss of rental income insurance in the amount not less than
one year's gross revenues from the Properties; and
(iii) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
6.18. NYSE AND REIT STATUS. The Borrower's common shares of beneficial
interest are listed on the New York Stock Exchange and there is no proceeding
pending to delist the Borrower's common shares of beneficial interest, and
the Borrower is qualified as a real estate investment trust and currently is
in compliance with all applicable provisions of the Code.
6.19. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 5, each of
the following representations and warranties is true and correct except to
the extent that the facts and circumstances giving rise to any such failure
to be so true and correct, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect:
(i) To the knowledge of the Borrower, the Properties of Borrower,
its Subsidiaries, and Qualifying Investment Affiliates do not
contain, any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, or could
reasonably give rise to liability under, Environmental Laws.
(ii) To the knowledge of Borrower, the Properties of Borrower and
its Subsidiaries and Investment Affiliates and all operations
at the Properties are in compliance with all applicable
Environmental
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Laws, and there is no contamination at or under such
Properties, or violation of any Environmental Law with
respect to such Properties for which Borrower, its
Subsidiaries or Investment Affiliates is or could be liable.
(iii) Neither Borrower nor any of its Subsidiaries or Qualifying
Investment Affiliates has received any written notice of
violation, alleged violation, non-compliance, liability or
potential liability regarding Environmental Laws with regard
to any of the Properties, nor does it have knowledge that any
such notice will be received or is being threatened.
(iv) To the knowledge of Borrower, Materials of Environmental
Concern have not been transported or disposed of from the
Properties of Borrower and its Subsidiaries and Qualifying
Investment Affiliates in violation of, or in a manner or to a
location which could reasonably give rise to liability of
Borrower, any Subsidiary, or any Qualifying Investment
Affiliate under, Environmental Laws, nor have any Materials
of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of such Properties in
violation of, or in a manner that could give rise to
liability of Borrower, any Subsidiary or any Qualifying
Investment Affiliate under, any applicable Environmental
Laws.
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of Borrower,
threatened, under any Environmental Law to which Borrower,
any of its Subsidiaries, or any Qualifying Investment
Affiliate, is named as a party with respect to the Properties
of such entity, nor are there any consent decrees or other
decrees, consent orders, administrative order or other
orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to such
Properties for which Borrower, its Subsidiaries, or any
Qualifying Investment Affiliate is or could be liable.
(vi) To the knowledge of Borrower, there has been no release or
threat of release of Materials of Environmental Concern at or
from the Properties of Borrower and its Subsidiaries and
Qualifying Investment Affiliates, or arising from or related
to the operations of such entity in connection with the
Properties in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.20. LICENSES, ETC. Borrower, its Subsidiaries or the Qualifying
Investment Affiliates have obtained and hold in full force and effect, all
material trademarks, trade names, copyrights, licenses, permits,
certificates, authorizations, qualifications,
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accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of the Properties.
6.21. JUDGMENTS. There are no judgments, decrees, or orders of any kind
against Borrower, its Subsidiaries or any Qualifying Investment Affiliate
unpaid of record which would have a Material Adverse Effect.
6.22. PROPERTY MANAGER. As of the date hereof, the manager of each
Property is the Borrower or a Qualifying Investment Affiliate.
6.23. UPDATED SCHEDULES. The Borrower may at any time and from time to
time update any Schedule to this Agreement by delivery to the Administrative
Agent of a revised Schedule and, from and after the date of delivery of such
updated Schedule to the Administrative Agent, and its approval by the
Required Lenders, the representations and warranties of the Borrower
hereunder shall be deemed to reflect such revised Schedule.
6.24. UNENCUMBERED ASSETS. SCHEDULE 2 hereto contains a complete and
accurate description of Unencumbered Assets as of the Closing Date and as
supplemented from time to time including the entity that owns each
Unencumbered Asset. With respect to each Property identified from time to
time as an Unencumbered Asset, Borrower hereby represents and warrants as
follows except to the extent disclosed in writing to the Lenders and approved
by the Required Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered
Asset is located in an area identified by the Secretary of Housing and
Urban Development or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the Flood
Disaster Protection Act of 1973, as amended, or any successor law, or, if
located within any such area, Borrower or the respective Qualifying
Investment Affiliate has obtained and will maintain the insurance
prescribed in SECTION 6.17 hereof.
(b) To the Borrower's knowledge, Borrower or the
respective Qualifying Investment Affiliate has obtained all material
certificates, licenses and other approvals, governmental and otherwise,
necessary for the operation of the Unencumbered Asset and the conduct of
its business and all required zoning, building code, land use,
environmental and other similar permits or approvals which it is required
to maintain, all of which are in full force and effect as of the date
hereof and not subject to revocation, suspension, forfeiture or
modification.
(c) To the Borrower's knowledge, the Unencumbered Asset
and the present use and occupancy thereof are in material compliance with
all applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, laws relating
to the disabled including, but not limited to, the Americans with
Disabilities Act to
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the extent applicable, and other similar laws ("Applicable Laws").
(d) The Unencumbered Asset is served by all utilities
required for the current or contemplated use thereof. All utility service
is provided by public utilities and the Unencumbered Asset has accepted or
is equipped to accept such utility service.
(e) All public roads and streets necessary for service of
and access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are
physically and legally open for use by the public.
(f) The Unencumbered Asset is served by public water and
sewer systems or, if the Unencumbered Asset is not serviced by a public
water and sewer system, such alternate systems are adequate and meet, in
all material respects, all requirements and regulations of, and otherwise
complies in all material respects with, all Applicable Laws with respect to
such alternate systems.
(g) Borrower is not aware of any latent or patent
structural or other significant deficiency of the Unencumbered Asset. The
Unencumbered Asset is free of damage and waste that would materially and
adversely affect the value of the Unencumbered Asset, is in good repair and
there is no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from damage caused by fire or other casualty.
There is no pending or, to the actual knowledge of Borrower threatened
condemnation proceedings affecting the Unencumbered Asset, or any part
thereof.
(h) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in
a good and safe condition and repair and to Borrower's knowledge, in
material compliance with all Applicable Laws with respect to such systems.
(i) All improvements on the Unencumbered Asset lie within
the boundaries and building restrictions of the legal description of record
of the Unencumbered Asset, no such improvements encroach upon easements
benefitting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset
and no improvements on adjoining properties encroach upon the Unencumbered
Asset or easements benefitting the Unencumbered Asset other than
encroachments that do not materially adversely affect the use or occupancy
of the Unencumbered Asset. All amenities, access routes or other items
that materially benefit the Unencumbered Asset are under direct control of
Borrower or the respective Qualifying Investment Affiliate, constitute
permanent easements that benefit all or part of the Unencumbered Asset or
are public property, and the Unencumbered Asset, by virtue of such
easements or
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otherwise, is contiguous to a physically open, dedicated all weather public
street, and has the necessary permits for ingress and egress.
(j) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments,
or other outstanding charges affecting the Unencumbered Asset except to the
extent such items are being contested in good faith and as to which
adequate reserves have been provided.
(k) The Unencumbered Asset is assessed for real estate tax
purposes as one or more wholly independent tax lot or lots, separate from
any adjoining land or improvements not constituting a part of such lot or
lots, and no other land or improvements is assessed and taxed together with
the Unencumbered Asset or any portion thereof.
(l) With respect to those Unencumbered Assets in which
Borrower or any Qualifying Investment Affiliate holds a leasehold estate
under a Financeable Ground Lease, with respect to each such Financeable
Ground Lease (i) Borrower or the respective Qualifying Investment Affiliate
is the owner of a valid and subsisting interest as tenant under the
Financeable Ground Lease; (ii) the Financeable Ground Lease is in full
force and effect, unmodified and not supplemented by any writing or
otherwise; (iii) all rent, additional rent and other charges reserved
therein have been paid to the extent they are payable to the date hereof;
(iv) Borrower or the respective Qualifying Investment Affiliate enjoys the
quiet and peaceful possession of the estate demised thereby, subject to any
sublease; (v) the Borrower or the respective Qualifying Investment
Affiliate is not in default under any of the terms thereof and there are no
circumstances which, with the passage of time or the giving of notice or
both, would constitute an event of default thereunder; (vi) the lessor
under the Financeable Ground Lease is not in default under any of the terms
or provisions thereof on the part of the lessor to be observed or
performed; (vii) the lessor under the Financeable Ground Lease has
satisfied all of its repair or construction obligations, if any, to date
pursuant to the terms of the Financeable Ground Lease; (viii) Schedule 2
lists all the Financeable Ground Leases to which any of the Unencumbered
Assets are subject and all amendments and modifications thereto; and (ix)
the lessor indicated on Schedule 2 for each Financeable Ground Lease is the
current lessor under the related Financeable Ground Lease.
A breach of any of the representations and warranties contained in this
SECTION 6.24 with respect to a Property shall disqualify unless otherwise
approved by the Required Lenders, such Property from being an Unencumbered
Asset but shall not constitute a Default (unless the elimination of such
Property as an Unencumbered Asset results in a Default under one of the
other provisions of this Agreement including without limitation
SECTIONS 7.21(iii) or 7.21(iv)).
6.25. YEAR 2000. The Borrower has made a full and complete assessment of
the
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Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on
such assessment and on the Year 2000 Program, the Borrower does not
reasonably anticipate that Year 2000 Issues will have a Material Adverse
Effect. Borrower agrees upon request of the Administrative Agent to complete
a written assessment form concerning its Year 2000 Program.
ARTICLE VII
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
7.1. FINANCIAL REPORTING. The Borrower will maintain, for themselves
and each Subsidiary, and shall cause each Qualifying Investment Affiliate to
maintain, a system of accounting established and administered in accordance
with GAAP, and furnish to the Lenders:
(i) as soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, for the Borrower an
unaudited consolidated balance sheet as of the close of each
such period and the related unaudited consolidated statements
of income and retained earnings and of cash flows of the
Borrower and its Subsidiaries for such period and the portion
of the fiscal year through the end of such period, setting
forth in each case in comparative form the figures for the
previous year, all certified by the Borrower's chief
financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, for the Borrower and
its Subsidiaries, related reports in form and substance
satisfactory to the Lenders, all certified by Borrower's
chief financial officer or chief accounting officer,
including a statement of Funds From Operations, a description
of Unencumbered Assets, a listing of capital expenditures (in
the level of detail as disclosed in Borrower's most recent
Form 10Q), a report listing and describing all newly acquired
Properties, including their cash flow, cost and secured or
unsecured Indebtedness assumed in connection with such
acquisition, if any, summary Property information for all
Properties, including, without limitation, their Property
Operating Income, occupancy rates, square footage, property
type and date acquired or built, and such other information
as may be requested to evaluate the quarterly compliance
certificate delivered as provided below;
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(iii) As soon as publicly available but in no event later than one
Business Day after the date such reports are to be filed with
the Securities Exchange Commission, copies of all Form 10Ks,
10Qs, 8Ks, and any other annual, quarterly, monthly or other
reports, copies of all registration statements and any other
public information which the Borrower or any of its
Subsidiaries files with the Securities Exchange Commission
and to the extent any of such reports contains information
required under the other subsections of this SECTION 7.1, the
information need not be furnished separately under the other
subsections;
(iv) As soon as available, but in any event not later than 90 days
after the close of each fiscal year of the Borrower and its
Subsidiaries, reports in form and substance satisfactory to
the Lenders, certified by the Borrower's chief financial
officer or chief accounting officer containing Property
Operating Income for each individual Property;
(v) Not later than forty-five (45) days after the end of each of
the first three fiscal quarters, and not later than ninety
(90) days after the end of the fiscal year, a compliance
certificate in substantially the form of EXHIBIT E hereto
signed by the Borrower's chief financial officer or chief
accounting officer confirming that Borrower is in compliance
with all of the covenants of the Loan Documents, showing the
calculations and computations necessary to determine
compliance with the financial covenants contained in this
Agreement (including such schedules and backup information as
may be necessary to demonstrate such compliance) and stating
that to such officer's best knowledge, there is no other
Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status
thereof;
(vi) (a) As soon as possible and in any event within 10 Business
Days after the Borrower knows that any Reportable Event has
occurred with respect to any Plan, a statement, signed by the
chief financial officer of Borrower, describing said
Reportable Event and within 20 days after such Reportable
Event, a statement signed by such chief financial officer
describing the action which Borrower proposes to take with
respect thereto; and (b) within 10 Business Days of receipt,
any notice from the Internal Revenue Service, PBGC or
Department of Labor with respect to a Plan regarding any
excise tax, proposed termination of a Plan, prohibited
transaction or fiduciary violation under ERISA or the Code
which could result in any liability to Borrower or any member
of the Controlled Group in excess of $100,000; and (c) within
10 Business Days of filing, any Form 5500 filed by Borrower
with respect to a Plan, or any member of the Controlled Group
which includes a qualified accountant's opinion.
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(vii) As soon as possible and in any event within 30 days after
receipt by the Borrower, a copy of (a) any notice or claim to
the effect that the Borrower or any of its Subsidiaries or
Qualifying Investment Affiliates is or may be liable to any
Person as a result of the release by such entity, or any of
its Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and (b)
any notice alleging any violation of any federal, state or
local environmental, health or safety law or regulation by
the Borrower or any of its Subsidiaries or Investment
Affiliates, which, in either case, could be reasonably likely
to have a Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished;
(ix) Promptly upon the distribution thereof to the press or the
public, copies of all press releases;
(x) As soon as possible, and in any event within 10 days after
the Borrower knows of any fire or other casualty or any
pending or threatened condemnation or eminent domain
proceeding with respect to all or any portion of any Property
or any property secured by a Qualified Mortgage, a statement
signed by the Chief Financial Officer of Borrower, describing
such fire, casualty or condemnation and the action Borrower
intends to take with respect thereto;
(xi) Not later than 45 days after the end of each quarter, a
report on the aging of receivables with respect to each of
the Properties (i.e. 0-29, 30-59, 60-89 and 90 or more days
past due) showing aggregate delinquencies for each of the
Properties (including a characterization of the type of
receivable) and trends for the prior four quarters;
(xii) Not later than 45 days after the end of each quarter, an
unaudited financial statement for each Qualifying Investment
Affiliate that is not a Subsidiary that owns an Unencumbered
Asset; and
(xiii) Such other information (including, without limitation,
financial statements for the Borrower and non-financial
information) as the Administrative Agent or any Lender may
from time to time reasonably request.
7.2. USE OF PROCEEDS. (i) The Borrower will use the proceeds of the
Advances and the Facility Letters of Credit for the general business purposes
of the Borrower,
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including working capital needs, closing costs, and interim or other
financing for acquisitions of new Projects, construction of new improvements
or expansions of existing improvements on Projects, and to repay outstanding
Indebtedness; and (ii) The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances (x) to purchase or
carry any "MARGIN STOCK" (as defined in Regulation U) or (y) to fund any
tender offer for all or substantially all of another Person's outstanding
Capital Stock registered with the Securities and Exchange Commission under
the Securities Act of 1933, unless such Person shall have consented to such
tender offer prior to its commencement and the Required Lenders shall have
consented to such use of the proceeds of such Advance.
7.3. NOTICE OF DEFAULT. The Borrower will give, and will cause each of
its Subsidiaries and each Qualifying Investment Affiliate to give, prompt
notice in writing to the Lenders of the occurrence of any Default or
Unmatured Default and of any other development, financial or otherwise, which
could be reasonably likely to have a Material Adverse Effect.
7.4. CONDUCT OF BUSINESS. The Borrower will do, and will cause each of
its Subsidiaries and Qualifying Investment Affiliates to do, all things
necessary to remain duly incorporated and/or duly qualified, validly existing
and in good standing as a real estate investment trust, corporation, general
partnership, limited liability company or limited partnership, as the case
may be, in its jurisdiction of incorporation/formation, except, with respect
to any Subsidiary or any Qualifying Investment Affiliate having less than
$10,000,000 of Market Capitalization, where the preservation of its corporate
existence, in the good faith business judgment of the Borrower, is no longer
in the best interests of the Borrower and the failure to preserve its
corporate existence would not have a Material Adverse Effect and the
elimination of its Properties from the calculation of financial covenant
compliance would not cause a Default or an Unmatured Default. The Borrower
will maintain all requisite authority to conduct its business in each
jurisdiction in which the Properties are located and, except where the
failure to be so qualified would not have a Material Adverse Effect, in each
jurisdiction required to carry on and conduct its businesses in substantially
the same manner as it is presently conducted, and, specifically, neither the
Borrower nor its Subsidiaries nor the Qualifying Investment Affiliates will
undertake any business other than the acquisition, development, ownership,
management, operation and leasing of warehouse/industrial properties and
ancillary businesses specifically related thereto, except that the Borrower
and its Subsidiaries and Qualifying Investment Affiliates may invest in other
assets subject to the following limitations with respect to the specified
categories of assets:
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-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
CATEGORIES OF ASSETS TOTAL INVESTMENT LIMITATIONS
-------------------- ----------------------------
(i) unimproved land 7% of Market Capitalization
(ii) other property holdings (excluding 5% of Market Capitalization
cash, Cash Equivalents, the
Non-industrial Properties and
Indebtedness of any Subsidiary or
Qualifying Investment Affiliate to
the Borrower and Indebtedness of CDC
or CRS to the Borrower or any Wholly-
owned Subsidiary incurred in
connection with the construction of
warehouse/industrial properties)
-------------------------------------------------------------------------------
(iii) stock holdings other than in 5% of Market Capitalization
Subsidiaries and Qualifying
Investment Affiliates and CRS
holdings in CDC
-------------------------------------------------------------------------------
(iv) mortgages other than Qualified 5% of Market Capitalization
Mortgages
-------------------------------------------------------------------------------
(v) joint ventures and partnerships other 10% of Market Capitalization
than investments in Qualifying
Investment Affiliates
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
The total investment in all the foregoing investment categories in the
aggregate shall be less than or equal to twenty percent (20%) of Market
Capitalization. In addition to the foregoing restrictions, (a) investments in
unimproved land which is not adjacent to existing improvements and not under
active planning for near term development as evidenced to the reasonable
satisfaction of Administrative Agent shall not exceed 5% of Market
Capitalization, (b) lessee's interests in operating leases pursuant to which
Borrower, its Subsidiaries or Investment Affiliates operate any properties
shall not exceed 10% of Market Capitalization, (c) no single industrial
property investment shall exceed 10% of Market Capitalization, (d) the total
estimated cost of completion of assets under construction, excluding pre-sold
assets and Preleased Assets Under Development, shall not exceed 10% of Market
Capitalization, and (e) the total loans, advances, and stock holdings of
Borrower, its Subsidiaries, and the Qualifying Investment Affiliates in CDC
shall not exceed 5% of Market Capitalization. For the purposes of this
SECTION 7.4, all investments shall be valued in accordance with GAAP.
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7.5. TAXES. The Borrower will pay, and will cause each of its
Subsidiaries and Qualifying Investment Affiliates to pay, when due all taxes,
assessments and governmental charges and levies upon them of their income,
profits or Properties, except those which are being contested in good faith
by appropriate proceedings and with respect to which adequate reserves have
been set aside.
7.6. INSURANCE. (i) The Borrower will, and will cause each of its
Subsidiaries and Qualifying Investment Affiliates to, maintain with
financially sound and reputable insurance companies insurance on all its
Property in such amounts and covering such risks as is consistent with sound
business practice and in compliance with the representation in SECTION 6.17,
and the Borrower will furnish to the Administrative Agent or any Lender upon
request full information as to the insurance carried. (ii) The Borrower
will promptly notify the Administrative Agent if there has been a termination
of any insurance policy or a material change in coverage or of the credit
rating of the insurer providing such coverage.
7.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause each of
its Subsidiaries and Qualifying Investment Affiliates to, be in material
compliance, with all laws, rules and regulations and with all final orders,
writs, judgments, injunctions, decrees or awards to which they may be subject.
7.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
of its Subsidiaries and Qualifying Investment Affiliates to, do all things
necessary to maintain, preserve, protect and keep its Property in good
repair, working order and condition, and make all necessary and proper
repairs, renewals and replacements so that their businesses carried on in
connection therewith may be properly conducted at all times.
7.9. INSPECTION. Upon reasonable notice, the Borrower will, and will
cause each of its Subsidiaries and Qualifying Investment Affiliates to,
permit the Lenders, by their respective representatives and agents, to
inspect any of the Properties, corporate books and financial records of the
Borrower and each of its Subsidiaries and Qualifying Investment Affiliates,
to examine and make copies of the books of accounts and other financial
records of the Borrower and each of its Subsidiaries and Qualifying
Investment Affiliates, and to discuss the affairs, finances and accounts of
the Borrower and each of its Subsidiaries and Qualifying Investment
Affiliates, and to be advised as to the same by, their respective officers at
such reasonable times during normal business hours and reasonable intervals
as the Lenders may reasonably designate.
7.10. MAINTENANCE OF STATUS. The Borrower shall at all times (i)
maintain the listing of its common shares of beneficial interest on the New
York Stock Exchange and not take any action that results in a proceeding to
delist such common shares, and (ii) maintain its status as a real estate
investment trust in compliance with all applicable provisions of the Code.
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7.11. DIVIDENDS. Provided there is NOT a continuing Default under
SECTION 8.1 or SECTION 8.2, and there is not a continuing Default under
SECTION 8.3 relating to a breach of any of the covenants contained in
SECTIONS 7.20 and 7.21, the Borrower shall be permitted to declare and pay
dividends on their Capital Stock from time to time in amounts determined by
the Borrower, PROVIDED, HOWEVER, that subject to the terms of the next
sentence, in no event shall the Borrower declare or pay dividends on their
Capital Stock if dividends paid in any period of four fiscal quarters, in the
aggregate, would exceed 90% of Funds From Operations for such period.
Notwithstanding the foregoing, unless at the time of distribution there
exists a Default in the payment of principal, interest, or the Commitment
Fee, the Borrower shall be permitted to distribute whatever amount of
dividends is necessary to maintain its tax status as a real estate investment
trust.
7.12. MERGER; SALE OF ASSETS. The Borrower will not, nor will it permit
any of its Subsidiaries or Qualifying Investment Affiliates to, enter into
any merger, consolidation, reorganization or liquidation or transfer or
otherwise dispose of all or a portion of their Property if such disposition
would constitute a "Restricted Disposition," except for (i) such transactions
that occur between Wholly-Owned Subsidiaries, (ii) transactions where
Borrower is the surviving entity and there is no change in business conducted
or loss of an investment grade rating on such entity's long-term unsecured
debt and no other Default results from such transaction, or (iii)
transactions that are approved in advance in writing by the Lenders. For
purposes of this SECTION 7.12, a "RESTRICTED DISPOSITION" shall mean any
disposition of assets (exclusive of Like-Kind Exchanges of one
industrial/warehouse property for another and dispositions of Non-industrial
Properties) if such disposition is of assets that (i) when aggregated with
all other assets of the Borrower, its Subsidiaries and Qualifying Investment
Affiliates previously disposed of during the fiscal year (exclusive of
Like-Kind Exchanges of one industrial/warehouse property for another and
dispositions of Non-industrial Properties), comprise more than 10% of Market
Capitalization for the most recent available quarter or (ii) when aggregated
with all other assets of the Borrower, its Subsidiaries and Qualifying
Investment Affiliates previously disposed of (exclusive of Like-Kind
Exchanges of one industrial/warehouse property for another and dispositions
of Non-industrial Properties) from November 13, 1997 to the date of such sale
comprise 25% or more of Market Capitalization for the most recent available
quarter.
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7.13. TRANSFERS OF UNENCUMBERED ASSETS. Neither the Borrower nor any of
its Qualifying Investment Affiliates shall transfer or otherwise dispose of
(other than the creation or incurrence of Liens permitted under SECTION 7.16)
an Unencumbered Asset (excluding its Non-industrial Properties) without the
prior written consent of Lenders holding 51% or more of the Aggregate
Commitment if such Unencumbered Asset, together with any other Unencumbered
Assets (excluding the Non-industrial Properties) which have been disposed of
during the period of four fiscal quarters ending with the quarter during
which such transfer occurs, have a value which exceeds 20% of the Value of
Unencumbered Assets (as determined at the beginning of such four quarter
period and increased to reflect the acquisition of Unencumbered Assets during
such four quarter period) or if such transfer would result in a violation of
the covenants contained in SECTIONS 7.20 and 7.21.
7.14. OWNERSHIP AND CONTROL OF BORROWER. The Borrower's management
(president, vice president, senior vice president, secretary, treasurer,
executive vice president, chief financial officer or chief executive officer)
and directors shall directly or indirectly control the ownership (which shall
include vested options) of a minimum 550,000 common shares of the Borrower
adjusted for stock splits, provided that if Borrower's management and
directors fail to maintain such ownership, such failure shall not constitute
a Default unless such failure continues for six months without approval by
the Required Lenders of such lower level of ownership.
7.15. SUBSIDIARIES AND QUALIFYING INVESTMENT AFFILIATES. In the event
that Borrower shall, directly or indirectly, transfer or otherwise dispose of
the Capital Stock (other than intercompany transfers where following such
transfer the assets of the Subsidiary or Qualifying Investment Affiliate
still meet the requirements for being an Unencumbered Asset) or other
ownership interests in any Subsidiaries or Qualifying Investment Affiliates,
such transfer or disposal shall be treated as though the applicable
Subsidiary or Qualifying Investment Affiliate had disposed of its assets for
purposes of determining whether such disposition is a Restricted Disposition
as defined in SECTION 7.12 or whether such disposition requires a written
consent of Lenders pursuant to SECTION 7.13.
7.16. LIENS. The Borrower will not, nor will it permit any of
its Subsidiaries or Qualifying Investment Affiliates to, create, incur, or
suffer to exist any Lien in, of or on the Property of the Borrower or any of
their Subsidiaries or Qualifying Investment Affiliates except:
(i) Liens for taxes, assessments or governmental charges or
levies on their Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves shall have been set aside on
their books;
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(ii) Liens which arise by operation of law, such as carriers',
warehousemen's, landlords', materialmen and mechanics' liens
and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 30
days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
(iv) Utility easements, building restrictions, zoning
restrictions, easements and such other encumbrances or
charges against real property as are of a nature generally
existing with respect to properties of a similar character
and which do not in any material way affect the marketability
of the same or interfere with the use thereof in the business
of the Borrower or its Subsidiaries or Qualifying Investment
Affiliates;
(v) Liens of any Subsidiary or Investment Affiliate in favor of
the Borrower;
(vi) Liens existing on the date hereof and described in SCHEDULE 3
hereto; and
(vii) Liens arising in connection with any Indebtedness permitted
hereunder to the extent such Liens will not result in a
violation of any of the provisions of this Agreement.
Liens permitted pursuant to this SECTION 7.16 shall be deemed to be
"PERMITTED LIENS".
7.17. AFFILIATES. The Borrower will not, nor will it permit any of its
Subsidiaries or Qualifying Investment Affiliates to, enter into any
transaction (including, without limitation, the purchase or sale of any
Property or service) with, or make any payment or transfer to, any Affiliate
except in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's or Qualifying Investment
Affiliate's business and upon fair and reasonable terms no less favorable to
the Borrower or such Subsidiary or Qualifying Investment Affiliate than the
Borrower or such Subsidiary or Qualifying Investment Affiliate would obtain
in a comparable arms-length transaction.
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7.18. INTEREST RATE HEDGING. The Borrower will not enter into or remain
liable upon, nor will it permit any Subsidiary or Qualifying Investment
Affiliate to enter into or remain liable upon, any agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options unless such agreement, device or
arrangement was entered into by the Borrower, a Subsidiary or Qualifying
Investment Affiliate in the ordinary course of its business for the purpose
of hedging interest rate risk to the Borrower, a Subsidiary or Qualifying
Investment Affiliate.
7.19. VARIABLE INTEREST INDEBTEDNESS. The Borrower shall not at any
time permit the outstanding principal balance of Indebtedness of the Borrower
and its Subsidiaries or Qualifying Investment Affiliates which bears interest
at an interest rate that is not fixed through the maturity date of such
Indebtedness ("Variable Rate Debt") to exceed $250,000,000, unless the amount
in excess of $250,000,000 is covered by interest rate caps or other interest
rate protection products reasonably satisfactory to the Required Lenders.
Notwithstanding the foregoing, Borrower shall be entitled to exclude up to
$75,000,000 of tax exempt bonds from the calculation of Variable Rate Debt.
7.20. CONSOLIDATED NET WORTH. The Borrower as of the last day of any
fiscal quarter, shall maintain a Consolidated Net Worth of not less than the
sum of (i) $308,000,000 plus (ii) seventy-five percent (75%) of the aggregate
proceeds received by the Borrower (net of customary related fees and
expenses) in connection with any offering of stock in the Borrower after July
1, 1998.
7.21. INDEBTEDNESS AND CASH FLOW COVENANTS. The Borrower shall not at
any time permit:
(i) the ratio of EBITDA to Fully Diluted Debt Service to
be less than 2.00 to 1.0 for the quarter then ended;
(ii) Consolidated Total Indebtedness to exceed fifty
percent (50%) of Market Capitalization;
(iii) the Value of Unencumbered Assets to be less than 1.75
times the Consolidated Senior Unsecured Indebtedness;
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(iv) the ratio obtained by dividing: (a) the Property
Operating Income after deducting (without
duplication) the Capital Expenditure Reserve Amount
and an assumed management fee equal to 4% of gross
revenues (excluding tenant reimbursements) from all
Unencumbered Assets qualifying for inclusion in the
calculation of Value of Unencumbered Assets for such
quarter by (b) that portion of Debt Service
attributable to Consolidated Unsecured Indebtedness
plus (without duplication) Borrower's pro rata share
(based on economic interest) of Debt Service for such
quarter attributable to unsecured indebtedness of
Qualifying Investment Affiliates that own assets
qualifying for inclusion in the calculation of Value
of Unencumbered Assets to be less than 2.00 to 1.0
for the quarter then ended; and
(v) Consolidated Secured Indebtedness to exceed thirty
percent (30%) of Market Capitalization.
7.22. ENVIRONMENTAL MATTERS. The Borrower will, and will cause each of
its Subsidiaries and Qualifying Investment Affiliates to:
(i) be in material compliance with, and use its
reasonable efforts to ensure material compliance by
all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and be in
material compliance with and maintain, and use its
reasonable efforts to ensure that all tenants and
subtenants obtain and be in material compliance with
and maintain, all material licenses, approvals,
notifications, registrations or permits required by
applicable Environmental Laws;
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(ii) conduct and complete, or will use its reasonable
efforts to cause its tenants or subtenants to conduct
and complete, all investigations, studies, sampling
and testing, and all remedial, removal and other
actions required under Environmental Laws and
promptly comply in all material respects with all
lawful orders and directives of all Governmental
Authorities applicable to Borrower, its Subsidiaries
or Qualifying Investment Affiliates or their
respective Properties regarding Environmental Laws,
except to the extent that (a) the same are being
contested in good faith by appropriate proceedings
and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse
Effect, or (b) the Borrower has determined in good
faith that contesting the same is not in the best
interests of the Borrower and its Subsidiaries and
the failure to contest the same could not be
reasonably expected to have a Material Adverse
Effect;
(iii) defend, indemnify and hold harmless the
Administrative Agent, the Documentation Agent and
each Lender, and their respective employees, agents,
officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements,
damages, costs and expenses arising out of, or in any
way relating to the violation of, noncompliance with
or liability under any Environmental Laws applicable
to the operations of the Borrower, its Subsidiaries
and Qualifying Investment Affiliates or the
Properties for which the Borrower, its Subsidiaries
or Qualifying Investment Affiliates are liable or
could reasonably be expected to be liable, including,
without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise
out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. This
indemnity shall continue in full force and effect
regardless of the termination of this Agreement; and
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(iv) prior to the acquisition of a new Property after the
Closing Date, perform or cause to be performed an
environmental investigation, which investigation
shall at a minimum comply with the specifications and
procedures attached hereto as EXHIBIT H. In
connection with any such investigation, Borrower
shall cause to be prepared a report of such
investigation and make it available to the
Administrative Agent, and any Lender may request that
Administrative Agent obtain a copy of such report.
Such report shall be reasonably satisfactory in form
and substance to the Administrative Agent.
7.23. NOTIFICATION OF RATING CHANGE. The Borrower shall notify the
Administrative Agent promptly (but no later than ten days following the
occurrence of any of the following events) if there is any change in the
rating assigned to Borrower's long term unsecured debt (regardless of whether
any such debt is outstanding) or Facility rating from ▇▇▇▇▇'▇ or S&P or any
substitute rating agency of either of such ratings.
7.24. MAXIMUM REVENUE FROM SINGLE TENANT. Borrower shall not permit the
rent revenue (exclusive of tenant reimbursements) received from a single
tenant during any quarter (as annualized), to exceed 5% of Market
Capitalization as of the last day of such quarter.
7.25. NEGATIVE PLEDGE. Borrower agrees that throughout the term of this
Facility, no "negative pledge" on Unencumbered Assets shall be given to any
other lender.
7.26. MANAGER. The Properties (other than the Non-industrial
Properties) shall at all times be managed by the Borrower or a Qualifying
Investment Affiliate.
7.27. ACCELERATION NOTICE. Borrower agrees that it shall, within ten
(10) days after receipt of written notice that any Indebtedness aggregating
$5,000,000 or more of Borrower or any Subsidiary or Qualifying Investment
Affiliate has been accelerated, provide written notice to the Administrative
Agent of such acceleration.
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7.28. LIEN SEARCHES; TITLE SEARCHES. Borrower shall, upon the
Administrative Agent's request therefor given from time to time, but not more
frequently than once during the term of this Facility, unless a Default shall
have occurred and be continuing or such Title Search indicates a Lien other
than a Permitted Lien or another state of facts not reasonably satisfactory
to the Administrative Agent and the Required Lenders, pay for (a) reports of
UCC, tax lien, judgment and litigation searches with respect to Borrower and
each Qualifying Investment Affiliate that owns an Unencumbered Asset, and (b)
searches of title to each of the Properties which are Unencumbered Assets
(each, a "Title Search"). All Title Searches and lien searches required
under this Agreement shall be conducted by search firms designated by
Administrative Agent in each of the locations designated by the
Administrative Agent.
7.29. ADDITIONAL COVENANTS. Borrower will not engage in or knowingly
permit any illegal activities at any Property.
7.30. CALCULATION OF FINANCIAL COVENANTS UPON PROPERTY BREACHES. In the
event of a breach of a representation or warranty under ARTICLE VI or of a
covenant under SECTION 7.5, 7.6, 7.7, 7.8, 7.16, 7.22 or 7.26 (which relates
to a Property and which does not have a Material Adverse Effect (a "Property
Breach")), or if there are environmental disclosures concerning a Property
contained in Schedule 5, Borrower shall be required to demonstrate financial
covenant compliance under applicable provisions of ARTICLE VII both with and
without the affected Property for as long as such breach or condition shall
exist.
ARTICLE VIII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
8.1. Nonpayment of any principal payment on any Note when due and
payable.
8.2. Nonpayment of (i) interest upon any Note, any Facility Fee,
Administrative Agent's Fee or Facility Letter of Credit Fee, under any of the
Loan Documents within five (5) Business Days after the same becomes due or
(ii) any other payment Obligation under any of the Loan Documents within five
(5) Business Days of Borrower's receipt of written notice.
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8.3. The breach of any of the terms or provisions of SECTIONS 7.1(iii),
(iv) and (v), 7.2(ii), 7.6(i) (to the extent such breach relates to a
cancellation of an insurance policy or Borrower's failure to pay the required
premium to renew a policy), 7.6(ii), 7.10, 7.11, 7.12, 7.13, 7.14, 7.16,
7.18, 7.20, 7.21 or 7.25, or a breach of any of the terms or provisions of
SECTION 7.1 (other than as set forth above) which remains uncured for ten
(10) business days.
8.4. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement (other than
SECTION 6.24 and a Property Breach unless such breach causes a Default under
another provision of this ARTICLE VIII), any Loan, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
8.5. The breach (other than a breach which constitutes a Default under
SECTION 8.1, 8.2, 8.3 or 8.4 and other than a Property Breach) of any of the
other terms or provisions of this Agreement which is not remedied within
thirty (30) days or ninety (90) days, for a breach which is curable but
cannot be cured within 30 days but is being diligently cured, after the
earlier to occur of the breach or receipt of written notice from the
Administrative Agent or any Lender.
8.6. Failure of the Borrower, any Qualifying Investment Affiliate (to
the extent the Indebtedness is recourse to Borrower or any Subsidiary) or any
of its Subsidiaries to pay when due (after applicable cure periods) any
Indebtedness aggregating in excess of $5,000,000 for which liability is not
limited to specific pledged collateral.
8.7. The Borrower, any Qualifying Investment Affiliate that is not a
Subsidiary having a Market Capitalization which is more than 3% of Market
Capitalization, or any Subsidiary having more than $10,000,000 of Market
Capitalization shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it or
its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, (v) take any
corporate action to authorize or effect any of the foregoing actions set
forth in this SECTION 8.7, (vi) fail to contest in good faith any appointment
or proceeding described in SECTION 8.8 or (vii) not pay, or admit in writing
its inability to pay, its debts generally as they become due.
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8.8. A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower, any Qualifying Investment Affiliate that
is not a Subsidiary having a Market Capitalization which is more than 3% of
Market Capitalization, or any Subsidiary having more than $10,000,000 of
Market Capitalization or any Substantial Portion of its Property, or a
proceeding described in SECTION 8.7(iv) shall be instituted against the
Borrower any Qualifying Investment Affiliate or any such Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of sixty (60) consecutive days.
8.9. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of (each a
"CONDEMNATION"), all or any portion of the Properties of the Borrower and its
Subsidiaries and Qualifying Investment Affiliates which, when taken together
with all other Property of the Borrower and its Subsidiaries and Qualifying
Investment Affiliates so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion of their Property.
8.10. The Borrower or any of its Subsidiaries or any Qualifying
Investment Affiliate shall fail within sixty (60) days to pay, bond or
otherwise discharge any judgments or orders for the payment of money in an
amount which, when added to all other judgments or orders outstanding against
the Borrower or any Subsidiary or any Qualifying Investment Affiliate would
exceed $10,000,000 in the aggregate, which have not been stayed on appeal or
otherwise appropriately contested in good faith, unless the liability is
insured against and the insurer has not challenged coverage of such liability.
8.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan, the PBGC or other
party that it has incurred withdrawal liability or is in default of payments
to such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Borrower or any
other member of the Controlled Group as withdrawal liability (determined as
of the date of such notification) or amounts in default, exceeds $250,000 or
requires payments exceeding $100,000 per annum.
8.12. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan or the PBGC or
other party that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of the
Borrower and the other members of the Controlled Group (taken as a whole) to
all Multiemployer Plans which are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years of each such Multiemployer
Plan immediately preceding the plan year in which the reorganization or
termination occurs by an amount exceeding $250,000 per year.
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8.13. (i) A Reportable Event shall occur with respect to a Plan, or
(ii) any Plan shall incur an accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived, or
fail to make a required installment payment on or before the due date under
Section 412 of the Code or Section 302 of ERISA, or (iii) Borrower or a
member of the Controlled Group shall have engaged in a nonexempt prohibited
transaction under Section 4975 of the Code or Section 406 of ERISA, or (iv)
Borrower or any member of the Controlled Group shall fail to pay when due an
amount which it shall have become liable to pay to the PBGC, or any Plan, any
Multiemployer Plan, or (v) Borrower or any member of the Controlled Group
shall have received a notice from the PBGC of its intention to terminate a
Plan or to appoint a trustee to administer a Plan, or Multiemployer Plan, or
a condition exists by reason of which the PBGC would be entitled to obtain a
decree adjudicating that a Plan must be terminated, or (vi) any other event
or condition shall occur or exist with respect to any employee benefit plan
(as defined in Section 3(3) of ERISA) or Plan or any Multiemployer Plan,
which could reasonably be expected to subject Borrower or any member of the
Controlled Group to any tax, penalty or other liability or the imposition of
any lien or security interest on Borrower or any member of the Controlled
Group, provided, however, that any event or circumstance in SECTIONS 8.13(i)
through (vi) shall only be an Event of Default if it would result in
liability to Borrower in excess of $250,000 per year; or (vii) the assets of
Borrower become or are deemed to be assets of an employee benefit plan (as
defined in Section 3(3) of ERISA or a plan as defined in Section 4975 of the
Code). No Default under this SECTION 8.13 shall be deemed to have been or be
waived or corrected because of any disclosure by Borrower.
8.14. Failure to remediate within the time period required by law or
governmental order, (or within a reasonable time in light of the nature of
the problem if no specific time period is so established), environmental
problems in violation of applicable law (i) related to Properties of the
Borrower and its Subsidiaries and the Qualifying Investment Affiliates if the
affected Properties have an aggregate book value in excess of $10,000,000 or
(ii) where the estimated cost of remediation is in the aggregate in excess of
$500,000, in each case after all administrative hearings and appeals have
been concluded.
8.15. The occurrence of any default under any Loan Document other than
this Agreement or the breach of any of the terms or provisions of any Loan
Document other than this Agreement, which default or breach continues beyond
any period of grace therein provided.
ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
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9.1. ACCELERATION. If any Default described in SECTION 8.7 or 8.8
occurs with respect to the Borrower or any Subsidiary or Qualifying
Investment Affiliate, the obligations of the Lenders to make Loans and of the
Issuing Bank to issue Facility Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative
Agent or any Lender. If any other Default occurs and is continuing, the
Required Lenders may terminate or suspend the obligations of the Lenders to
make Loans hereunder and to issue Facility Letters of Credit, or declare the
Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, upon written notice to the Borrower.
In addition to the foregoing, following the occurrence and during the
continuance of a Default and so long as any Facility Letter of Credit has not
been fully drawn and has not been cancelled or expired by its terms, upon
demand by the Administrative Agent or the Required Lenders, the Borrower
shall establish and deposit in the Letter of Credit Collateral Account cash
in an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may
become due with respect thereto. The Borrower shall have no control over
funds in the Letter of Credit Collateral Account, which funds will be
invested by the Administrative Agent from time to time at its discretion in
certificates of deposit of First Chicago having a maturity not exceeding 30
days. Such funds shall be promptly applied by the Administrative Agent to
reimburse any Issuing Bank for drafts drawn from time to time under the
Facility Letters of Credit. Such funds, if any, remaining in the Letter of
Credit Collateral Account following the payment of all Obligations in full
shall, unless Administrative Agent is otherwise directed by a court of
competent jurisdiction, be promptly paid over to the Borrower.
If, within forty-five (45) days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to make
Loans hereunder or to issue Facility Letters of Credit as a result of any
Default (other than any Default as described in SECTION 8.7 or 8.8 with
respect to the Borrower) and before any judgment or decree for the payment of
the Obligations shall have been obtained or entered, the Required Lenders (in
their sole discretion) may direct, the Administrative Agent shall, by notice
to the Borrower, rescind and annul such acceleration and/or termination.
9.2. AMENDMENTS, WAIVERS, DECISIONS. Subject to the provisions of this
ARTICLE IX and the right of the Borrower, solely with the agreement of the
Administrative Agent and such new banks or existing Lenders as may provide
new or increased Commitments, to increase the Aggregate Commitment as
described in SECTION 2.24 above, the Required Lenders (or the Administrative
Agent with the consent or direction in writing of the Required Lenders) and
the Borrower may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrower hereunder, or waiving any
Default hereunder; PROVIDED, HOWEVER, that no such supplemental agreement
shall, without the consent of all Lenders:
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(i) Extend the Facility Termination Date or forgive all or any
portion of the principal amount of any Loan or accrued
interest thereon or the Commitment Fee, reduce the Applicable
Margins on the underlying interest rate options or otherwise
modify or add to such interest rate options, or extend the
time of payment of any of the Obligations.
(ii) Reduce the percentage specified in the definition of Required
Lenders or change any provision that currently requires an
approval from the Required Lenders, all Lenders or the
specific Lender affected, to approval by a different
standard.
(iii) Increase the amount of the Aggregate Commitment beyond
$350,000,000.
(iv) Permit the Borrower to assign its rights under this
Agreement.
(v) Amend SECTION 2.2, 2.3, 3.8(a), 12.2, or this SECTION 9.2.
(vi) Release or limit the liability of Borrower or any guarantor
with respect to the Obligations.
Notwithstanding the foregoing, no amendment of Section 7.21(iii) or 7.21(iv)
or any of the definitions included within such covenants shall be effective
without the consent of Lenders having at least 90.1% of the Aggregate
Commitment (not held by Defaulting Lenders who are not entitled to vote) or
if the Aggregate Commitment has been terminated, holding at least 90.1% of
the aggregate unpaid principal amount of the outstanding Advances (not held
by Defaulting Lenders who are not entitled to vote).
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, and no amendment increasing the Commitment of any
Lender shall be effective without the written consent of such Lender.
9.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence
of a Default or the inability of the Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to SECTION 9.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents
or by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
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ARTICLE X
GENERAL PROVISIONS
10.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of the
Notes and the making of the Loans herein contemplated.
10.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. TAXES. Any taxes (excluding federal, state and local income or
franchise or other similar taxes on the overall net income of any Lender) or
other similar assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the Borrower,
together with interest and penalties, if any.
10.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Administrative Agent, the
Documentation Agent and the Lenders and supersede all prior commitments,
agreements and understandings among the Borrower, the Administrative Agent,
the Documentation Agent and the Lenders relating to the subject matter
thereof, except for the agreement of the Borrower to pay certain fees to the
Administrative Agent and the Documentation Agent and the agreement of the
Administrative Agent to pay certain fees to the Lenders.
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than
the parties to this Agreement and their respective successors and assigns.
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10.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Arrangers and Administrative Agent on demand for any costs, and reasonable
out-of-pocket expenses (including, without limitation, all reasonable fees
for consultants and reasonable fees and expenses for attorneys for the
Arrangers and Administrative Agent (without duplication), which attorneys may
be employees of the Arrangers or Administrative Agent) paid or incurred by
the Arrangers (whether in their capacity as arrangers, or, in the case of
First Chicago, in its capacity as Administrative Agent) in connection with
the preparation, negotiation, execution, delivery, amendment or modification
of the Loan Documents. The Borrower also agrees to reimburse the Arrangers,
Administrative Agent, and the Lenders for any costs, internal charges and
reasonable out-of-pocket expenses (including, without limitation, all
reasonable fees and expenses for attorneys for the Arrangers, Administrative
Agent and the Lenders, which attorneys may be employees of the Arrangers or
the Lenders) paid or incurred by the Arrangers or Administrative Agent
(whether in their capacity as arrangers, or, in the case of First Chicago, in
its capacity as Administrative Agent) or any Lender in connection with the
collection and enforcement of the Loan Documents (including, without
limitation, any workout). The Borrower further agrees to indemnify the
Administrative Agent, the Arrangers and each Lender and their directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and reasonable expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
such entity is a party thereto) which any of them may pay or incur arising
out of or relating to this Agreement, the other Loan Documents, the
Properties, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder,
other than liability arising from the gross negligence or wilful misconduct
of the party being indemnified. The obligations of the Borrower under this
SECTION 10.7 shall survive for two years after the termination of this
Agreement.
10.8. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may
furnish one to each of the Lenders.
10.9. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP, except that
any calculation or determination which is to be made on a consolidated basis
shall be made for the Borrower and all its Subsidiaries.
10.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
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10.11. NONLIABILITY OF LENDERS, ARRANGERS, ADMINISTRATIVE AGENT AND
DOCUMENTATION AGENT. The relationship between the Borrower, on the one hand,
and the Lenders, the Arrangers, the Administrative Agent, and the
Documentation Agent on the other, shall be solely that of borrower and
lender. Neither the Administrative Agent, the Documentation Agent, the
Arrangers nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Administrative Agent, the Documentation Agent, the
Arrangers nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations. Neither the Arrangers nor the
Documentation Agent shall have any responsibilities to the Borrower or
Lenders under this Agreement except to the extent, if any, expressly for
herein.
10.12. PUBLICITY. Each Lender and each Arranger shall have the right to
do a tombstone publicizing the transaction contemplated hereby upon the
consent of the Borrower which shall not be unreasonably withheld.
10.13. BROKERS. Borrower, Administrative Agent and Documentation Agent
each hereby represent and warrant that no brokers or finders were used in
connection with procuring the financing contemplated hereby and Borrower
hereby agrees to indemnify and save the Administrative Agent, the
Documentation Agent and each Lender harmless from and against any and all
liabilities, losses, costs and expenses (including attorneys' fees or court
costs) suffered or incurred by the Administrative Agent, the Documentation
Agent or any Lender as a result of any claim or assertion by any party
claiming by, through or under Borrower, its Subsidiaries or any Investment
Affiliate that it is entitled to compensation in connection with the
financing contemplated hereby. Administrative Agent hereby agrees to
indemnify and save Borrower harmless from and against any and all
liabilities, losses, costs and expenses (including attorneys' fees or court
costs) suffered or incurred by Borrower as a result of any claim or assertion
by any party claiming by, through or under Administrative Agent that it is
entitled to compensation in connection with the financing contemplated
hereby. Documentation Agent hereby agrees to indemnify and save Borrower
harmless from and against any and all liabilities, losses, costs and expenses
(including attorneys' fees or court costs) suffered or incurred by Borrower
as a result of any claim or assertion by any party claiming by, through or
under Documentation Agent that it is entitled to compensation in connection
with the financing contemplated hereby.
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10.14. CONFIDENTIALITY. With respect to the financial statements and
other information delivered pursuant to SECTION 7.1, and any other
information obtained by any Lender or any assignee of any Lender pursuant to
this SECTION 10.14 or otherwise, each Lender and each assignee of any Lender
agree that, to the extent that such information therein contained has not
theretofore otherwise been disclosed in such a manner as to render such
information no longer confidential, such Lender and such assignee will employ
reasonable procedures reasonably designed to maintain the confidential nature
of the information therein contained; provided that anything herein contained
to the contrary notwithstanding, any Lender or its assignee may disclose or
disseminate such information to: (a) its employees, agents, attorneys and
accountants who would ordinarily have access to such information in the
normal course of the performance of their duties; (b) such third parties as
such Lender may deem reasonably necessary in connection with or in response
to (i) compliance with any law, ordinance or governmental order, regulation,
rule, policy, subpoena, investigation, regulatory authority request or
requests, or (ii) any order, decree, judgment, subpoena, notice of discovery
or similar ruling or pleading issued, filed, served or purported on its face
to be issued, filed or served by or under authority of any court, tribunal,
arbitration board of any governmental or industry agency, commission,
authority, board or similar entity or in connection with any proceeding, case
or matter pending (or on its face purported to be pending) before any court,
tribunal, arbitration board or any governmental agency, commission,
authority, board or similar entity; and (c) any prospective assignee of or
Participant in such Lender's interest, provided such prospective assignee or
Participant agrees in writing to be bound by these provisions.
10.15. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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10.16. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS
STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY
NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE
AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE
BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
10.17. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE XI
THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS
11.1. APPOINTMENT. Subject to the provisions of SECTION 11.11, The
First National Bank of Chicago is hereby appointed Administrative Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the agent of such
Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this ARTICLE XI. The Administrative Agent shall not
have a fiduciary relationship in respect of the Borrower or any Lender by
reason of this Agreement. The Administrative Agent agrees to administer this
Facility in the same manner as it administers similar facilities for its own
account.
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11.2. POWERS. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan
Documents to be taken by the Administrative Agent.
11.3. GENERAL IMMUNITY. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable to the Borrower,
the Lenders or any Lender for any action taken or omitted to be taken by it
or them hereunder or under any other Loan Document or in connection herewith
or therewith except for its or their own gross negligence or willful
misconduct and except for liability of Administrative Agent for breach of an
express agreement made by the Administrative Agent herein to take or not take
actions based on the approval or direction of a requisite number of Lenders.
11.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or
verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under any
Loan Document, including, without limitation, any agreement by an obligor to
furnish information directly to each Lender; (iii) the satisfaction of any
condition specified in ARTICLE V, except receipt of items required to be
delivered to the Administrative Agent; (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith (provided that Administrative Agent shall be
obligated to furnish copies of the Loan Documents to the Lenders); or (v) the
value, sufficiency, creation, perfection or priority of any interest in any
collateral security. The Administrative Agent shall have no duty to disclose
to the Lenders information that is not required to be furnished by the
Borrower to the Administrative Agent at such time, but is voluntarily
furnished by the Borrower to the Administrative Agent in its individual
capacity.
11.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with
written instructions signed by the Required Lenders unless such action or
inaction requires the consent of all the Lenders or an individual Lender not
included in the direction of the Required Lenders pursuant to this Agreement,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of Notes. The
Administrative Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it shall first
be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
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11.6. EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents,
and attorneys-in-fact and so long as it exercises reasonable care in the
selection of such parties, the Administrative Agent shall not be answerable
to the Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such parties. The
Administrative Agent shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
11.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
11.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent (in its
capacity as Administrative Agent but not as Lender) ratably in proportion to
their respective Commitments (i) for any amounts not reimbursed by the
Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents including reasonable out-of-pocket
expenses in connection with the preparation, execution, delivery of the Loan
Documents, (ii) for any other reasonable out-of-pocket expenses incurred by
the Administrative Agent on behalf of the Lenders, in connection with the
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of
any such other documents, PROVIDED that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Administrative Agent or an action relating to a dispute
which is solely between the Administrative Agent and one or more Lenders in
which the other Lender prevails, or an action taken or not taken by
Administrative Agent contrary to the express requirements contained herein
pertaining to the requisite number of Lenders required to approve or direct
certain actions. The obligations of the Lenders under this SECTION 11.8
shall survive payment of the Obligations and termination of this Agreement.
11.9. RIGHTS AS A LENDER.
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(a) In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers and the same
duties and obligations hereunder and under any other Loan Document as any
Lender and may exercise the same as though it were not the Administrative
Agent, and the term "LENDER" or "LENDERS" shall, at any time when the
Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The
Administrative Agent and any Lender may accept deposits from, lend money to,
and generally engage in any kind of trust, debt, equity or other transaction,
in addition to those contemplated by this Agreement or any other Loan
Document, with the Borrower or any of its Subsidiaries in which the Borrower
or such Subsidiary is not restricted hereby from engaging with any other
Person.
(b) In the event the Documentation Agent is a Lender, the
Documentation Agent shall have the same rights and powers and the same duties
and obligations hereunder and under any other Loan Document as any Lender and
may exercise the same as though it were not the Documentation Agent, and the
term "LENDER" or "LENDERS" shall, at any time when the Documentation Agent is
a Lender, unless the context otherwise indicates, include the Documentation
Agent in its individual capacity. The Documentation Agent may accept
deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person.
11.10. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the
Documentation Agent or any other Lender and based on the financial statements
prepared by the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. Each Lender also acknowledges
that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
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11.11. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation in either case to be effective upon the
appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, sixty days after the retiring
Administrative Agent gives notice of its intention to resign. Upon any such
resignation, the Required Lenders shall have the right to appoint upon the
confirmation of the Borrower if such successor is not a Lender, on behalf of
the Borrower and the Lenders, a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders within forty-five days after the resigning Administrative Agent's
giving notice of its intention to resign, then the resigning Administrative
Agent may appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent upon the confirmation of the Borrower (if required). If
the Administrative Agent has resigned and no successor Administrative Agent
has been appointed and confirmed (if required) within 60 days, the Lenders
shall perform all the duties of the Administrative Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be either a
Lender or a commercial bank (or a subsidiary thereof) having capital and
retained earnings of at least $500,000,000 that is generally in the business
of making loans comparable to the Loans made under this Facility, except that
if the successor Administrative Agent is a subsidiary of a bank, such capital
and retained earnings requirement shall apply only to the parent bank. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon
the effectiveness of the resignation of the Administrative Agent, the
resigning Administrative Agent and the successor Administrative Agent shall
pro rate any agency fees, and the resigning Administrative Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Administrative
Agent, the provisions of this ARTICLE XI shall continue in effect for the
benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents.
11.12. NOTICE OF DEFAULTS. If a Lender becomes aware of a Default or
Unmatured Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Unmatured Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
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11.13. REQUESTS FOR APPROVAL. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative
Agent within ten Business Days (or sooner if such notice specifies a shorter
period, but in no event less than five Business Days for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request
from the Administrative Agent. If the Lender does not so respond, that
Lender shall be deemed to have approved the request. Upon request, the
Administrative Agent shall notify the Lenders which Lenders, if any, failed
to respond to a request for approval.
11.14. COPIES OF DOCUMENTS. Administrative Agent shall promptly deliver
to each of the Lenders copies of all notices of default and other formal
notices sent or received according to SECTION 14.1 of this agreement.
Administrative Agent shall deliver to Lenders within 15 Business Days
following receipt, copies of all financial statements, certificates and
notices received regarding the Borrower's unsecured debt rating except to the
extent such items are required to be furnished directly to the Lenders by
Borrower hereunder. Within fifteen Business Days after a request by a Lender
to the Administrative Agent for other documents furnished to the
Administrative Agent by the Borrower, the Administrative Agent shall provide
copies of such documents to such Lender except where this Agreement obligates
Administrative Agent to provide copies in a shorter period of time.
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11.15. DEFAULTING LENDERS. At such time as a Lender becomes a
Defaulting Lender, such Defaulting Lender's right to vote on matters which
are subject to the consent or approval of the Required Lenders, each affected
Lender or all Lenders shall be immediately suspended until such time as the
Lender is no longer a Defaulting Lender. If a Defaulting Lender has failed
to fund its Percentage of any Advance and until such time as such Defaulting
Lender subsequently funds its Percentage of such Advance, all Obligations
owing to such Defaulting Lender hereunder shall be subordinated in right of
payment, as provided in the following sentence, to the prior payment in full
of all principal of, interest on and fees relating to the Loans funded by the
other Lenders in connection with any such Advance in which the Defaulting
Lender has not funded its Percentage (such principal, interest and fees being
referred to as "SENIOR LOANS" for the purposes of this section). All amounts
paid by the Borrower and otherwise due to be applied to the Obligations owing
to such Defaulting Lender pursuant to the terms hereof shall be distributed
by the Administrative Agent to the other Lenders in accordance with their
respective Percentages (recalculated for the purposes hereof to exclude the
Defaulting Lender) until all Senior Loans have been paid in full. At that
point, the "Defaulting Lender" shall no longer be deemed a Defaulting Lender.
After the Senior Loans have been paid in full equitable adjustments will be
made in connection with future payments by the Borrower to the extent a
portion of the Senior Loans had been repaid with amounts that otherwise would
have been distributed to a Defaulting Lender but for the operation of this
SECTION 11.15. This provision governs only the relationship among the
Administrative Agent, each Defaulting Lender and the other Lenders; nothing
hereunder shall limit the obligation of the Borrower to repay all Loans in
accordance with the terms of this Agreement. The provisions of this section
shall apply and be effective regardless of whether a Default occurs and is
continuing, and notwithstanding (i) any other provision of this Agreement to
the contrary, (ii) any instruction of the Borrower as to its desired
application of payments or (iii) the suspension of such Defaulting Lender's
right to vote on matters which are subject to the consent or approval of the
Required Lenders or all Lenders.
ARTICLE XII
RATABLE PAYMENTS
12.1. Intentionally Deleted.
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12.2. RATABLE PAYMENTS. If any Lender has payment made to it upon its
Loans (other than payments received pursuant to SECTIONS 4.1, 4.2 or 4.4 and
payments received in connection with Competitive Bid Loans) in a greater
proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans held by the other
Lenders so that after such purchase each Lender will hold its ratable
proportion of Loans. If any Lender, whether in connection with setoff or
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to their Loans. In case any such payment is disturbed
by legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their successors and permitted assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under
the Loan Documents and (ii) any assignment by any Lender must be made in
compliance with SECTION 13.3. Notwithstanding clause (ii) of this SECTION
13.1, any Lender may at any time, without the consent of the Borrower assign
all or any portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment shall
release the transferor Lender from its obligations hereunder. The
Administrative Agent may treat the payee of any Note as the owner thereof for
all purposes hereof unless and until such payee complies with SECTION 13.3 in
the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Administrative Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound by
all the terms and provisions of the Loan Documents. Any request, authority
or consent of any Person, who at the time of making such request or giving
such authority or consent is the holder of any Note, shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
13.2. PARTICIPATIONS.
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13.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender, in the
ordinary course of its business and in accordance with applicable law, at
any time, may sell participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents. Any Person to whom
such a participating interest is sold is a "PARTICIPANT". In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by
the Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the
Loan Documents.
13.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment or postpones any date fixed for
any regularly-scheduled payment of principal of, or interest or fees on,
any such Loan or Commitment or releases any guarantor of any such Loan or
releases any substantial portion of collateral, if any, securing such Loan.
13.3. ASSIGNMENTS.
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13.3.1. PERMITTED ASSIGNMENTS. Any Lender, in the ordinary course
of its business and in accordance with applicable law, at any time, may
assign all or any portion (greater than or equal to $5,000,000 per
assignee) of its rights and obligations under the Loan Documents.
Notwithstanding the foregoing provision, any assignment by a Lender to
another Lender in the Facility or an Affiliate thereof or an Affiliate of
the assigning Lender shall not be subject to either the $5,000,000 minimum
assignment amount or the requirement set forth below regarding Borrower's
consent or the fee in SECTION 13.3.2(ii). Any Person to whom such rights
and obligations are assigned is a "PURCHASER". Such assignment shall be
substantially in the form of EXHIBIT F hereto or in such other form as may
be agreed to by the parties thereto (the "Assignment"). So long as no
Default has occurred and is continuing, Borrower's consent shall be
required for any assignment provided that if such assignment is to an
entity that is a "Qualified Lender", such consent shall not be unreasonably
denied or delayed. "Qualified Lender" shall mean an institution with
assets over $5,000,000,000.00 that is generally in the business of making
loans comparable to the Loans made under this Facility and that maintains
an office in the United States. Any Lender which is an Arranger,
Documentation Agent, or Administrative Agent may make an assignment only if
it first resigns its status as Arranger, Documentation Agent, or
Administrative Agent as the case may be unless it obtains the consent of
Borrower or a Default has occurred; provided that if such assignment
reduces the Administrative Agent's Commitment below $10,000,000 it must
also obtain the consent of any Lender which after such assignment would
have a Percentage greater than the new Percentage of the Lender making the
assignment. The consent of the Administrative Agent, which shall not be
unreasonably withheld, shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof. Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion
of its rights under this Agreement (including, without limitation, amounts
owing to it in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System),
provided that no such security interest or the exercise by the secured
party of any of its rights thereunder shall release Lender from its funding
obligations hereunder and such Lender shall retain all voting rights.
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13.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent and the Borrower of a notice of assignment,
substantially in the form attached as EXHIBIT "I" to EXHIBIT F hereto (a
"NOTICE OF ASSIGNMENT"), together with any consents required by
SECTION 13.3.1, and (ii) payment of a $3,000 fee to the Administrative
Agent for processing such assignment, such assignment shall become
effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the Purchaser to
the effect that none of the consideration used to make the purchase of the
Commitment and Loans under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to this Agreement and any other
Loan Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Administrative Agent shall be required to
release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this SECTION
13.3.2, the transferor Lender, the Administrative Agent and the Borrower
shall make appropriate arrangements so that replacement Notes are issued to
such transferor Lender, if applicable, and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their Commitment, as adjusted pursuant to such
assignment.
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13.4. DESIGNATION OF LENDER TO MAKE COMPETITIVE LOANS. Any Lender
(each a "Designating Lender") may at any time designate one or more
Designated Lenders to fund Competitive Bid Loans which the Designating Lender
is required to fund subject to the terms of this SECTION 13.4 and the
provisions in SECTION 13.3 shall not apply to such designation. No Lender
shall be entitled to make more than two such designations. The parties to
each such designation shall execute and deliver to the Administrative Agent,
for its acceptance, a Designation Agreement in the form of EXHIBIT I. Upon
its receipt of an appropriately completed Designation Agreement executed by a
Designating Lender and a designee representing that it is a Designated
Lender, the Administrative Agent will accept such Designation Agreement and
give prompt notice thereof to the Borrower, whereupon, from and after the
effective date specified in the Designation Agreement, the Designated Lender
shall become a party to this Agreement with a right to make Competitive Bid
Loans on behalf of its Designating Lender pursuant to SECTION 2.14 after the
Borrower has accepted a Competitive Bid (or a portion thereof) of the
Designating Lender. Each Designating Lender shall serve as the agent for the
Designated Lender and shall on behalf of the Designated Lender give and
receive all communications and notices and take all actions hereunder,
including without limitation votes, approvals, waivers, consents and
amendments under or relating to this Agreement or the other Loan Documents.
Any such notice, communications, vote approval, waiver, consent or amendment
shall be signed by the Designating Lender as agent for the Designated Lender
and shall not be signed by the Designated Lender. The Borrower, the
Administrative Agent and the Lenders may rely thereon without any requirement
that the Designated Lender sign or acknowledge the same, and without any
specific designation that the Designating Lender is signing in an agency
capacity. This SECTION 13.4 shall survive the termination of this Agreement.
13.5. DISSEMINATION OF INFORMATION. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries, provided that such Transferees agree to maintain the
confidentiality of any information that is confidential in the manner set
forth in SECTION 10.14.
13.6. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of SECTION 2.22.
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13.7. POSSESSION OF LOAN DOCUMENTS AND REGISTER. The Administrative
Agent shall keep and maintain complete and accurate files and records of all
matters pertaining to the Loan. Upon reasonable prior notice to the
Administrative Agent by any Lender, the Administrative Agent will make
available to such Lender and their representatives and agents, the files and
records relating to the Facility for inspection and copying during normal
business hours. The Administrative Agent shall also maintain at its address
specified pursuant to ARTICLE XIV, a copy of each Assignment delivered to and
accepted by it and a listing of the names and addresses of the Lenders, the
amount of each Lender's Commitment and Percentage (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower, Administrative Agent, and the Lenders
may treat each person or entity whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection and copying by Borrower or any Lender during normal
business hours upon reasonable prior notice to the Administrative Agent.
ARTICLE XIV
NOTICES
14.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.17
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such
other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by telex or
facsimile, shall be deemed given when transmitted (answerback confirmed in
the case of telexes).
14.2. CHANGE OF ADDRESS. The Borrower, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
14.3. ACCOUNTS. The Administrative Agent shall deliver to each Lender
and Borrower, and each Lender shall deliver to Administrative Agent wiring
instructions containing account information for purposes of the payment of
sums due under this Agreement.
ARTICLE XV
COUNTERPARTS
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This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust
By:
Print Name:
Title:
By:
Print Name:
Title:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Ungaretti & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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COMMITMENT:
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$50,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
PERCENTAGE:
---------- By:
20.00%
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENT:
----------
$50,000,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
PERCENTAGE:
---------- By:
20.00%
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
Notice Address:
Bank of America National Trust and
Savings Association
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-97-
COMMITMENT:
----------
$35,000,000 AMSOUTH BANK
PERCENTAGE: By:
----------
14.00% Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Notice Address:
AmSouth Sonat Tower - 9th Fl.
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENT:
----------
$30,000,000 U.S. BANK NATIONAL ASSOCIATION
PERCENTAGE: By:
----------
12.00% Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Notice Address:
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-98-
COMMITMENT:
----------
$25,000,000 FIRST UNION NATIONAL BANK
PERCENTAGE: By:
----------
10.00% Print Name: ▇▇▇ ▇▇▇▇
Title:
Notice Address:
One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENT:
----------
$20,000,000 LASALLE NATIONAL BANK
PERCENTAGE: By:
----------
8.00% Print Name: ▇▇▇▇ ▇▇▇▇
Title:
Notice Address:
LaSalle National Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-99-
COMMITMENT:
----------
$20,000,000 COMMERZBANK AG, CHICAGO BRANCH
By:
PERCENTAGE:
---------- Print Name: J. ▇▇▇▇▇▇▇ Shortly
8.00%
Title: Senior Vice President
By:
-------------------------
Print Name:
-----------------
Title:
----------------------
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ Shortly
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-100-
COMMITMENT:
----------
$10,000,000 THE NORTHERN TRUST COMPANY
PERCENTAGE: By:
----------
4.00% Print Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENT:
----------
$10,000,000 KEYBANK NATIONAL ASSOCIATION
PERCENTAGE: By:
----------
4.00% Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
-101-
EXHIBIT A
PRICING GRID
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Pricing Category 0 1 2 3 4 5
----------------------------------------------------------------------------------------------------------------------------
RATINGS: AT LEAST AT LEAST AT LEAST BELOW BELOW BOTH
A-AND A3 OR BBB+ AND BBB AND BBB- AND EITHER BBB-
S&P&MOODY'S ABOVE BAA1 BAA2 BAA3 BBB- OR AND BAA3
BAA3***
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Corporate Base 0 0 0 15.0 30.0 70.0
Rate Margin*
----------------------------------------------------------------------------------------------------------------------------
LIBOR Margin* 75.0 80.0 100.0 115.0 130.0 170.0
----------------------------------------------------------------------------------------------------------------------------
Facility Fee 15.0 20.0 20.0 25.0 30.0 30.0
----------------------------------------------------------------------------------------------------------------------------
All-in Funded 90.0 100.0 120.0 140.0 160.0 200.0
Funded Cost
(Margin + Fee)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
* = In basis points per annum
*** This rating category shall apply at any time that either S & P has issued a
rating of the Borrower's long term debt of less than BBB-or ▇▇▇▇▇'▇ has
issued a rating of less than Baa3.
All margins and fees change as and when the rating classification changes.
In the event both rating agencies have issued a rating and the rating
agencies are split on the rating for the Borrower's long-term unsecured debt
or this Facility, the lower rating shall, except as set forth below, be
deemed to be the applicable rating (e.g., if the Borrower's ▇▇▇▇▇'▇ long-term
unsecured debt or this Facility's rating is Baa1 and its S&P long-term
unsecured debt or this Facility's rating is BBB then the Applicable Margins
shall be computed based on the S&P rating). In the event that ▇▇▇▇▇'▇ and
S&P issue split ratings on the Borrower's long term unsecured debt, Borrower
may obtain a third rating from Duff & ▇▇▇▇▇▇ or Fitch and the higher of the
▇▇▇▇▇'▇ or S&P rating shall be deemed applicable until the earlier of (i) 90
days after the date of the occurrence of such split ratings or (ii) the date
of the issuance of the third rating by Duff & ▇▇▇▇▇▇ or Fitch. After 90
days, if a third rating has not been issued, the lower of the ▇▇▇▇▇'▇ or S&P
rating shall apply. In the event ▇▇▇▇▇'▇ and S&P issue different ratings of
the Borrower's long term unsecured debt and the Borrower obtains a third
rating which is different from the ▇▇▇▇▇'▇ and S&P ratings, the middle rating
of the three ratings shall be deemed the applicable rating. In the event
▇▇▇▇▇'▇ and S&P issue different ratings on the Borrower's long term unsecured
debt and the Borrower obtains a third rating which is the equivalent of the
▇▇▇▇▇'▇ or S&P rating, the third rating confirming either the ▇▇▇▇▇'▇ or S&P
rating, as the case may be, shall be deemed to be the applicable rating. In
the event either ▇▇▇▇▇'▇ or S&P has not issued a rating, the rating from the
agency that has issued its rating shall govern.
The Applicable Margins shall be adjusted effective on the next Business Day
following any change in the Borrower's (or the Facility's if applicable)
▇▇▇▇▇'▇ long-term unsecured debt rating and/or S&P's long-term unsecured debt
rating, as the case may be (provided that if Administrative Agent does not
receive notice of a change in rating within forty-five days after it occurs
then any reduction in Applicable Margin shall be effective only when such
notice is received). In the event of a rating agency downgrade, the Borrower
will receive a credit for any incremental borrowing cost should the rating
agency(ies) restore the higher rating within a ninety day period. In the
event that either S&P or ▇▇▇▇▇'▇ shall discontinue their ratings of the REIT
industry or the Borrower's long-term unsecured debt or this Facility, a
mutually agreeable substitute rating agency shall be selected by the Required
Lenders and the Borrower. If the Required Lenders and the Borrower cannot
agree on a substitute rating agency within forty-five (45) days of such
discontinuance, the Applicable Margin to be used for the calculation of
interest on Advances hereunder shall be Pricing Category 4. Lenders
acknowledge that the rating for Borrower's unsecured long term debt may be
issued even though Borrower has no outstanding unsecured long term debt.
EXHIBIT B-1
NOTE
$
----------------------- --------------------
CenterPoint Properties Trust, a Maryland real estate investment trust
(the "BORROWER"), promises to pay to the order of _________________________
(the "Lender") the lesser of the principal sum of _________________ Dollars
or the aggregate unpaid principal amount of all Loans made by the Lender to
the Borrower pursuant to the Second Amended and Restated Unsecured Revolving
Credit Agreement hereinafter referred to, in immediately available funds at
the main office of The First National Bank of Chicago in Chicago, Illinois,
as Administrative Agent, together with interest on the unpaid principal
amount hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay the remaining unpaid principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual
practice, the date and amount of each Loan and the date and amount of each
principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Second Amended and Restated Unsecured Revolving Credit
Agreement (as the same may be amended or modified the "Agreement"), dated as
of , 1998 among the Borrower, The First National Bank of
Chicago, individually and as Administrative Agent, ▇▇▇▇▇▇ Brothers Holdings
Inc., individually and as Document Agent and the other Lenders named therein,
to which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under
which this Note may be prepaid or its maturity date accelerated. Capitalized
terms used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Unmatured Default or Default under the Agreement or any
other Loan Document and Administrative Agent exercises the remedies provided
under the Agreement and/or any of the Loan Documents for the Lenders, then in
addition to all amounts recoverable by the Administrative Agent and the
Lenders under such documents, the Administrative Agent and the Lenders shall
be entitled to receive reasonable attorneys fees and expenses incurred by
Administrative Agent and the Lenders in connection with the exercise of such
remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this
Note, and any and all lack of diligence or delays in collection or
enforcement of this Note, and expressly agree that this Note, or any payment
hereunder, may be extended from time to time, and expressly consent to the
release of any party liable for the obligation secured by this Note, the
release of any of the security for this Note, the acceptance of any other
security therefor, or any other indulgence or forbearance whatsoever, all
without notice to any party and without affecting the liability of the
Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING
THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS
PROMISSORY NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A JUDGE AND NOT BEFORE A JURY.
CENTERPOINT PROPERTIES TRUST
By:
Print Name:
------------------------
Title:
-----------------------------
[NOTES FOR EXISTING LENDERS WILL BE REVISED TO REFLECT THAT THEY AMEND AND
RESTATE EXISTING NOTES.]
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF CENTERPOINT PROPERTIES CORPORATION
DATED ______________, 199__
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Principal Maturity Maturity
Amount of Principal Unpaid
Date Type of Loan Rate Interest Amount Balance
Period Paid
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
__________, 1998
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Second Amended and
Restated Unsecured Revolving Credit Agreement dated as of __________________,
1998 (the "Agreement") between CENTERPOINT PROPERTIES TRUST ("BORROWER") and
THE FIRST NATIONAL BANK OF CHICAGO, a national bank organized under the laws
of the United States of America, individually and as Administrative Agent for
the Lenders and others (as such terms are defined in the Agreement), Borrower
promises to pay to the order of _________________________ (the "Lender"), or
its successors and assigns, the unpaid principal amount of such Competitive
Bid Loan made by the Lender to the Borrower pursuant to SECTION 2.14 of the
Agreement, in immediately available funds at the office of the main
Administrative Agent in Chicago, Illinois, together with interest on the
unpaid principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay any remaining unpaid principal amount of
such Competitive Bid Loans and any accrued and unpaid interest under this
Competitive Bid Note ("NOTE") in full on or before the Facility Termination
Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual
practice, the date, amount and due date of each Competitive Bid Loan and the
date and amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which
Agreement and Loan Documents, as they may be amended from time to time,
reference is hereby made for, INTER ALIA, a statement of the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
If there is an Unmatured Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in
exercising such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and
all lack of diligence or delays in collection or enforcement of this Note,
and expressly agree that this Note, or any payment hereunder, may be extended
from time to time, and expressly consent to the release of any party liable
for the obligation secured by this Note, the release of any of the security
of this Note, the acceptance of any other security therefor, or any other
indulgence or forbearance whatsoever, all without
notice to any party and without affecting the liability of the Borrower and
any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING
THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS
NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
CENTERPOINT PROPERTIES TRUST
By: ____________________________
Print Name: ____________________
Title: _________________________
[NOTES FOR EXISTING LENDERS WILL BE REVISED TO REFLECT THAT THEY AMEND AND
RESTATE EXISTING NOTES.]
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
EXHIBIT C-1
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.14(b))
To: The First National Bank of Chicago,
as administrative agent (the "Agent")
From: Centerpoint Properties Trust
Re: Second Amended and Restated Unsecured Revolving Credit Agreement
dated as of __________________, 1998, as amended among the Borrower,
the Lenders from time to time party thereto, The First National Bank
of Chicago, as Arranger, and The First National Bank of Chicago, as
Administrative Agent for the Lenders (as amended, supplemented or
otherwise modified from time to time through the date hereof, the
"Agreement")
1. Capitalized terms used herein have the meanings assigned to them
in the Agreement.
2. We hereby give notice pursuant to Section 2.14(b) of the
Agreement that we request Competitive Bid Quotes for the following proposed
Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount(1) Interest Period(2)
3. Such Competitive Bid Quotes should offer
[a Competitive LIBOR Margin] [an Absolute Rate].
------------------------------
(1) Amount must be at least $10,000,000 and an integral multiple of
$1,000,000.
(2) Up to 180 days, subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.
4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned
shall be deemed to affirm as of the Borrowing Date thereof the
representations and warranties made in ARTICLE VI of the Agreement.
CENTERPOINT PROPERTIES TRUST
By: ___________________________________
Print Name: ___________________________
Title: ________________________________
EXHIBIT C-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.14(c))
To: Each of the Lenders party to
the Agreement referred to below
Re: Invitation for Competitive Bid Quotes to
CenterPoint Properties Trust
Pursuant to SECTION 2.14(c) of the Second Amended and Restated Unsecured
Revolving Credit Agreement dated as of _______________, 1998 as amended from
time to time, among the Borrower, the lenders from time to time party
thereto, The First National Bank of Chicago, as Arranger, and the First
National Bank of Chicago as Administrative Agent for the Lenders (as amended,
supplemented or otherwise modified from time to time through the date hereof,
the "Agreement"), we are pleased on behalf of the Borrower to invite you to
submit Competitive Bid Quotes to the Borrower for the following proposed
Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with Section
2.14(c) of the Agreement and the foregoing. Capitalized terms used herein
have the meanings assigned to them in the Agreement.
Please respond to this invitation by no later than [9:00 A.M.] (Chicago
time) on _______________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By: ____________________________________
Title: _________________________________
EXHIBIT C-3
COMPETITIVE BID QUOTE
(Section 2.14(d))
_______________, 19___
To: The First National Bank of Chicago,
as Administrative Agent
Re: Competitive Bid Quote to CenterPoint Properties Trust
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______________, 19___, we hereby make the following Competitive Bid Quote
pursuant to SECTION 2.14(d) of the Agreement hereinafter referred to and on
the following terms:
1. Quoting Lender: _______________________________________________________
2. Person to contact at Quoting Lender: __________________________________
3. Borrowing Date: ___________________________________________________ (3)
4. We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[Competitive
Principal Interest LIBOR Margin(6)] [Absolute Minimum
Amount(4) Period(5) Rate(7)] Amount(8)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
---------------------------
(3) As specified in the related Invitation For Competitive Bid Quotes.
(4) Principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 and
integral multiples of $1,000,000.
(5) Up to 180 days, as specified in the related Invitation For Competitive
Bid Quotes.
(6) Competitive LIBOR Margin for the applicable LIBOR Interest Period.
Specify percentage (rounded to the nearest 1/100 of 1%) and specify whether
"PLUS" or "MINUS".
(7) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(8) Specify minimum amount, if any, which the Borrower may accept (see
Section 2.14(d)(ii)(4)).
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Second
Amended and Restated Unsecured Revolving Credit Agreement dated as of
____________________, 1998, among the Borrower, the Lenders from time to time
party thereto, and The First National Bank of Chicago, as Administrative
Agent for the Lenders (as amended, supplemented or otherwise modified from
time to time through the date hereof, the "Agreement"), irrevocably obligates
us to make the Competitive Bid Loan(s) for which any offer(s) are accepted,
in whole or in part. Capitalized terms used herein and not otherwise defined
herein shall have their meanings as defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By: ___________________________________
Title: ________________________________
EXHIBIT D
FORM OF OPINION
______________, 19
The Administrative Agent and
the Lenders who are parties to the
Credit Agreement described below
Gentlemen/Ladies:
We are counsel for CenterPoint Properties Trust (the "Borrower"), and
have represented the Borrower in connection with its execution and delivery
of a Second Amended and Restated Unsecured Revolving Credit Agreement among
the Borrower, The First National Bank of Chicago, individually and as
Administrative Agent, ▇▇▇▇▇▇ Brothers Holdings Inc., individually and as
Documentation Agent, and the Lenders named therein, providing for Advances in
an aggregate principal of up to $250,000,000 subject to possible increases to
up to $350,000,000 at any one time outstanding and dated as of ______________,
1998 (the "Agreement"). All capitalized terms used in this opinion and not
otherwise defined shall have the meanings attributed to them in the Agreement.
We have examined the Borrower's articles of incorporation, by-laws,
and resolutions, the Loan Documents and such other matters of fact and law
which we deem necessary in order to render this opinion. Based upon the
foregoing, it is our opinion that:
l. The Borrower and each of its Subsidiaries and each Qualifying
Investment Affiliate are either duly incorporated corporations or duly
qualified and formed limited partnerships, limited liability companies, or
trusts, validly existing and in good standing under the laws of their states
of incorporation or formation, and they each have all requisite authority and
power to enter into, and perform the obligations under, the Loan Documents
and to conduct business in each jurisdiction in which the laws of such
jurisdiction requires such qualification.
2. The execution and delivery of the Loan Documents by the Borrower
and the performance by the Borrower of its obligations under the Loan
Documents have been duly authorized by all necessary corporate action and/or
proceedings on the part of the Borrower and will not:
(a) require any consent of the Borrower's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's articles of
incorporation, by-laws, certificate of limited partnership, partnership
agreement, declaration of trust, or any indenture, instrument or
agreement binding upon the Borrower or any of its Subsidiaries; or
(c) result in, or require, the creation or imposition of any Lien
pursuant to the provisions of any indenture, instrument or agreement
binding upon the Borrower or any
of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the
Borrower and constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with their terms except to the extent the
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to
the availability of equitable remedies if equitable remedies are sought.
4. There is no litigation or proceeding against the Borrower or any
of its Subsidiaries which, if adversely determined, could have a Material
Adverse Effect.
5. No approval, authorization, consent, adjudication or order of,
or registration or filing with, any governmental authority, which has not
been obtained or made by the Borrower or any of its Subsidiaries, is required
to be obtained or made by the Borrower or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the
borrowings under the Agreement or in connection with the payment by the
Borrower of their obligations under the Loan Documents.
6. The Loan does not violate the usury laws or laws regulating the
use or forbearance of money of Illinois and the operation of any term of the
Agreement or Loan Documents, including, without limitation, the terms
regarding late charges and default interest rate or the lawful exercise of
any right thereunder, shall not render the Agreement or Loan Documents
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense.
7. The Borrower qualifies as a real estate investment trust in
accordance with all applicable requirements of the Internal Revenue Code.
This opinion may be relied upon by the Administrative Agent, the
Lenders and their participants, assignees and other transferees.
Very truly yours,
________________________________
EXHIBIT E
COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Second Amended and Restated Unsecured Revolving Credit Agreement, dated as of
________________, 1998 (as amended, modified, renewed or extended from time
to time, the "Agreement") among CenterPoint Properties Trust (the
"Borrower"), The First National Bank of Chicago, individually and as
Administrative Agent, ▇▇▇▇▇▇ Brothers Holdings Inc., individually and as
Documentation Agent, and the Lenders named therein. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected Chief Financial Officer of the Borrower.
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries and
Qualifying Investment Affiliates during the accounting period covered by the
financial statements attached (or most recently delivered to the
Administrative Agent if none are attached).
3. The examinations described in paragraph 2 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Material Adverse Effect, Default or Unmatured Default during or
at the end of the accounting period covered by the attached financial
statements or as of the date of this Compliance Certificate, except as set
forth below.
4. Schedule I (if attached) attached hereto sets forth financial
data and computations and other information evidencing the Borrower's
compliance with certain covenants of the Agreement, all of which data,
computations and information (or if no Schedule I is attached, the data,
computations and information contained in the most recent Schedule I attached
to a prior Compliance Certificate) are true, complete and correct in all
material respects.
5. The financial statements and reports referred to in Section
7.1(i), 7.1(ii), 7.1(iv), or 7.1(xi), as the case may be, of the Agreement
which are delivered concurrently with the delivery of this Compliance
Certificate, if any, fairly present in all material respects the consolidated
financial condition and operations of the Borrower and its Subsidiaries at
such date and the consolidated results of their operations for the period
then-ended, in accordance with GAAP applied consistently throughout such
period and with prior periods (except as approved by the accountants
performing the audit in connection therewith or the undersigned, as the case
may be, and disclosed therein), the Property Operating Income for each
Property in accordance with GAAP and adjusted per the definition of Property
Operating Income contained in the Agreement, and the aggregate aging of
tenant receivables at such date. The following required reporting items are
not yet available but will be delivered within the ten Business Day grace
period: ____________________________________.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking,
or proposes to take with respect to each such condition or event:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this _____ day of ____________, 19__.
CENTERPOINT PROPERTIES TRUST
By: ____________________________________
Print Name: ____________________________
Title: _________________________________
SCHEDULE I
Calculation of Covenants
[QUARTER]
1. Permitted Investments (Section 7.4)
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Maximum
Percent Percent of
Category Investment of Market Market
(i.e. Book Value) Capitalization Capitalization
-----------------------------------------------------------------------------------------
(a) unimproved land 7%
-----------------------------------------------------------------------------------------
(b) other property holdings 5%
(excluding cash, Cash
Equivalents, the
Non-industrial
Properties and
Indebtedness of any
Subsidiary or Qualifying
Investment Affiliate to
the Borrower)
-----------------------------------------------------------------------------------------
(c) stock holdings other 5%
than in Subsidiaries and
Qualifying Investment
Affiliates
-----------------------------------------------------------------------------------------
(d) mortgages other than 5%
Qualified Mortgages
-----------------------------------------------------------------------------------------
(e) joint ventures and 10%
partnerships other than
investments in
Qualifying Investment
Affiliates
-----------------------------------------------------------------------------------------
(f) total investments in 20%
(a)-(e)
-----------------------------------------------------------------------------------------
(g) investments in 5%
unimproved land not
adjacent to existing
improvements and not
under active planning
for near term
development
-----------------------------------------------------------------------------------------
(h) interest in operating 10%
leases
-----------------------------------------------------------------------------------------
(i) Identify any single property investments in excess of 10% of Market Capitalization
(If none, insert "none".): ___________________
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
(j) (i) Total estimated cost of completion of assets under
construction, excluding pre-sold assets and
Preleased Assets Under Development ___
(ii) Market Capitalization ___
ESTIMATED COST AS A PERCENTAGE OF MARKET CAPITALIZATION
[(j)(i) DIVIDED BY (j)(ii) EXPRESSED AS A PERCENTAGE]
MUST BE LESS THAN OF EQUAL TO: 10%
2. Dividends (Section 7.11)
(a) Amount paid during most recent quarter ___
(b) Amount paid during preceding three quarters ___
(c) Funds From Operation during such four quarter period
(i) net income for such period ___
(ii) adjustments to net income per definition
of Funds From Operation (See Schedule) ___
(iii) Funds From Operation ___
TOTAL DIVIDEND PAY OUT RATIO [(a) PLUS (b), DIVIDED BY (c)(iii)] _________
Must be less than or equal to: 90% of Funds
From Operation
3. Variable Interest Indebtedness (Section 7.19)
(a) Indebtedness which bears interest at an interest rate that ___
is not fixed through the maturity date of such Indebtedness
(b) Amount of (a) subject to a swap, rate cap or other interest ___
rate management program that effectively converts the
interest rate on such amount to a fixed rate or has
otherwise been approved by the Required Lenders
(c) Excludable tax exempt bonds (subject to $75,000,000 cap) ___
VARIABLE INTEREST INDEBTEDNESS [(a) MINUS (b) MINUS (c)]: ___
MUST BE LESS THAN OR EQUAL TO: $250,000,000
4. Minimum Consolidated Net Worth (Section 7.20)
(a) Consolidated Net Worth
(i) Market Capitalization ___
(ii) Total Liabilities (including all
Indebtedness and other GAAP
liabilities) ___
(iii) Excludable Convertible Securities ___
(iv) Consolidated Net Worth [(i) MINUS (ii) PLUS (iii)] ___
(b) $308,000,000
(c) product of .75 and net proceeds of stock offerings
since ____________, 1998.
(d) sum of (b) plus (c) ___
(a) MUST BE GREATER THAN OR EQUAL TO (d).
5. EBITDA To Fully Diluted Debt Service Ratio (Section 7.21(i))
(a) EBITDA for the quarter most recently ended
(i) Borrower and its Subsidiaries ___
(ii) Allocable EBITDA of Investment Affiliates ___
(See Schedule)
(iii) EBITDA [(i) PLUS (ii)] ___
(b) Fully Diluted Debt Service for the quarter most recently ended.
(i) Debt Service
(1) Interest (Borrower and Subsidiaries) ___
(2) Principal (Borrower and Subsidiaries) ___
(3) Allocable Interest (Investment Affiliates) ___
(4) Allocable Principal (Investment Affiliates) ___
(5) Debt Service [SUM OF (1)-(4)] ___
(ii) Amount of Debt Service attributable to Excludable
Convertible Securities ___
(iii) Fully Diluted Debt Service [(i) MINUS (ii)] ___
EBITDA TO FULLY DILUTED DEBT SERVICE RATIO ___
[(a) DIVIDED BY (b)]:
MUST BE GREATER THAN OR EQUAL TO: 2.00
6. Consolidated Total Indebtedness Ratio (Section 7.21(ii))
(a) Consolidated Total Indebtedness (See Schedule) ___
(b) Market Capitalization
(i) Total Property Income Capped at Applicable Cap
Rate (Attach schedule noting Property Operating
Income for the most recent quarter by Property as
appropriately annualized; for Subsidiaries and
Investment Affiliates include allocable share
only).
(1) Industrial and Multi-Family Properties ___
capped at 9.5%
(2) Non-industrial that is not Multi-Family
capped at 10.25% ___
(3) Sum of (1) plus (2) is Total Property ___
Income capped at Applicable Cap Rate.
(ii) Other Income capped at 15% ___
(iii) Value of Qualified Mortgages
(1) [IDENTIFY MORTGAGE]
A. Principal Balance ___
B. 85% of value of Property ___
encumbered by Qualified Mortgage (i.e.
Property Operating Income for the most
recent quarter as appropriately
annualized, and capitalized at the
Applicable Cap Rate) less first
mortgage if applicable
C. Lesser of (A.) and (B.) ___
(__) Sum of amount shown as (C.) for (1)-(__) ___
above (maximum $50,000,000) is Value of
Qualified Mortgages
(iv) Book value of Preleased Assets Under Development ___
(maximum $100,000,000)
[IDENTIFY ASSET, LEASE PERCENTAGE, AND DATE CONSTRUCTION
COMMENCED]
(v) Unrestricted Cash and Cash Equivalents ___
(vi) 50% of lower of book value and market value ___
for land adjacent to stabilized improved
properties
(vii) Sum of (i) through (vi) is "Market Capitalization" ___
CONSOLIDATED TOTAL INDEBTEDNESS RATIO ___
[(a) DIVIDED BY (b) EXPRESSED AS A PERCENTAGE]:
MUST BE LESS THAN OR EQUAL TO: 50%
7. Value of Unencumbered Assets Ratio (Section 7.21(iii))
(a) Value of Unencumbered Assets
(i) Property Operating Income attributable to
Unencumbered Assets owned by Borrower and
Qualifying Investment Affiliates as of end of
quarter as appropriately annualized (including pro
forma Property Operating Income for entire quarter
for Unencumbered Assets acquired during the
quarter), less assumed 4% management fee and
assumed Capital Reserve Expenditure Amount (attach
schedule noting Property Operating Income for each
Unencumbered Asset as appropriately annualized; for
Qualifying Investment Affiliates include allocable
share only)
(1) Industrial and Multi-family Properties
capped at 9.5% ___
(2) Non-Industrial Properties that are not
Multi-family Properties capped at 10.25% ___
(3) Total value of Unencumbered Assets other
than Cash and Cash Equivalents [(1) PLUS (2)] ___
(4) Deduction for Unencumbered Assets owned ___
by Qualifying Investment Affiliates
to the extent the value attributable
to such Unencumbered Assets exceeds 10%
of the total shown in (3) unless permitted
by the definition of Unencumbered Assets
(5) (3) minus (4) ___
(ii) Unrestricted Cash and Cash Equivalents owned ___
by Borrower
(iii) Allocable Share of Unrestricted Cash and Cash ___
Equivalents Owned by Qualifying Investment
Affiliates
(vi) sum of (i)(5) plus (ii) plus (iii) is ___
"Value of Unencumbered Assets"
(b) Consolidated Senior Unsecured Indebtedness ___
(provided schedule of such Indebtedness, including
unsecured debt of Investment Affiliates which own
Unencumbered Assets.)
VALUE OF UNENCUMBERED ASSETS RATIO [(a) DIVIDED BY (b)]:
MUST BE GREATER THAN OR EQUAL TO: 1.75
8. Property Operating Income Ratio (Section 7.21(iv)
(a) Property Operating Income (after assumed management ___
fee and Capital Reserve Expenditure Amount from all
Unencumbered Assets other than those which are excluded
from the Value of Unencumbered Assets under 7(a)(i)(4)
(b) Debt Service on Consolidated Unsecured Indebtedness
and unsecured indebtedness of Qualifying Investment
Affiliates other than those which are excluded from
the Value of Unencumbered Assets under 7(a)(i)(4)
(i) Interest (Borrower and Subsidiaries) ___
(ii) Principal (Borrower and Subsidiaries) ___
(iii) Allocable Interest (Qualifying Investment Affiliates) ___
(iv) Allocable Principal (Qualifying Investment Affiliates) ___
(v) Debt Service [SUM OF (i)-(iv)] ___
PROPERTY OPERATING INCOME RATIO [(a) DIVIDED BY (b)] ___
MUST BE GREATER THAN OR EQUAL TO: 2.00
9. Consolidated Secured Indebtedness to Market Capitalization (Section 7.21(v))
(a) Consolidated Secured Indebtedness
(i) secured indebtedness of Borrower and Subsidiaries ___
(ii) prorata share of secured indebtedness of Investment
Affiliates ___
(iii) Consolidated Secured Indebtedness [SUM OF (i) PLUS (ii)] ___
(b) Market Capitalization [(6)(b)(vii)] _________
(c) (a) divided by (b) _________
MUST BE LESS THAN OR EQUAL TO 30% OF MARKET CAPITALIZATION
10. Maximum Revenue From a Single Tenant (Section 7.24)
(a) 5% of Market Capitalization _________
(b) Identify any tenant for which rent revenue
(exclusive of tenant reimbursements) as
annualized exceeds amount shown in (a). _________
11. Other
Occurrence of Casualty or Condemnation at any Property or
Property secured by an Qualified Mortgage. (Yes/No)
(Section 7.1(x)). If yes, provide statement describing the
occurrence and action Borrower intends to take with
respect thereto ___
Current on tax payments (Yes/No) (Section 7.5) _________
Insurance in full force and effect (Yes/No)
(Sections 6.17 and 7.6) _________
Have any shares owned by Borrower's management (as
defined in Section 7.14) been traded (Yes/No)
If yes, describe _________
Acceleration notice received for indebtedness
aggregating $5,000,000 or more (Section 7.27) since
last Section 7.27 notice (Yes/No) If yes, promptly
provide copy of notice to the extent not previously
submitted _________
List all outstanding judgments (Section 8.10) ___
List all properties acquired or disposed of since the date
of the last financial statements delivered (including the date
of such acquisition or disposition) (Sections 7.12 and 7.13). _________
List all Property Breaches and the nature of such breach, _________
if any. (Section 7.30). If such Property Breaches exist, the
covenants calculated herein should be performed both with and
without the affected Properties.
NOTE: To the extent of any inconsistency between the form of
this Compliance Certificate and the terms of the
Agreement, the terms of the Agreement shall prevail.
EXHIBIT F
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between __________
__________________________ (the "Assignor") and ________________ (the
"Assignee") is dated as of ______________, 19___. The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Second Amended
and Restated Unsecured Revolving Credit Agreement (which, as it may be amended,
modified, renewed or extended from time to time is herein called the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under SECTIONS 4 and 5 hereof are not made on
the proposed Effective Date, unless otherwise agreed to in writing by Assignor
and Assignee. The Assignor will notify the Assignee of the proposed Effective
Date no later than the Business Day prior to the proposed Effective Date. As of
the Effective Date, (i) the Assignee shall have the rights and obligations of a
Lender under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its
rights and be released from its corresponding obligations under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
CBR Loans assigned to the Assignee hereunder and (ii) with respect to each LIBOR
Loan made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such LIBOR Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being
hereinafter referred to as the "LIBOR Due Date"), the Assignee shall pay the
Assignor an amount equal to the principal amount of the portion of such LIBOR
Loan assigned to the Assignee which is outstanding on the LIBOR Due Date. If
the Assignor and the Assignee agree that the applicable LIBOR Due Date for
such LIBOR Loan shall be the Effective Date, they shall agree, solely for
purposes of dividing interest paid by the Borrower on such LIBOR Loan, to an
alternate interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the related
Interest Period (the "Agreed Interest Rate") and any interest received by the
Assignee in excess of the Agreed Interest Rate, with respect to such LIBOR
Loan for such period, shall be remitted to the Assignor. In the event a
prepayment of any LIBOR Loan which is existing on the Effective Date and
assigned by the Assignor to the Assignee hereunder occurs after the Effective
Date but before the applicable LIBOR Due Date, the Assignee shall remit to
the Assignor any excess of the funding indemnification amount paid by the
Borrower under SECTION 3.4 of the Credit Agreement an account of such
prepayment with respect to the portion of such LIBOR Loan assigned to the
Assignee hereunder over the amount which would have been paid if such
prepayment amount were calculated based on the Agreed Interest Rate and only
covered the portion of the Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from the Administrative Agent with
respect to any LIBOR Loan prior to its LIBOR Due Date and (ii) any amounts of
interest on Loans and fees received from the Administrative Agent which
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date, in the case of CBR Loans or fees, or the
LIBOR Due Date, in the case of LIBOR Loans, and not previously paid by the
Assignee to the Assignor.]* In the event that either party hereto receives
any payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to
the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Facility Fee is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or Facility Fee attributable to the
period prior to the Effective Date or, in the case of LIBOR Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
SECTION 4 hereof). The amount of such fee shall be the difference between (i)
the interest or fee, as applicable, paid with respect to the amounts assigned to
the Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder if
each interest rate was calculated at the rate of ___% rather than the actual
percentage used to calculate the interest rate paid by the Borrower or if the
Facility Fee was calculated at the rate of ____% rather than the actual
percentage used to calculate the Facility Fee paid by the Borrower, as
applicable. In addition, the Assignee agrees to pay ___% of the fee required to
be paid to the Agent in connection with this Assignment Agreement. [THIS
SENTENCE CAN BE REVISED APPROPRIATELY BASED ON HOW THE FEE IS BEING PAID.]
*EACH ASSIGNOR MAY INSERT ITS STANDARD PROVISIONS IN LIEU OF THE PAYMENT TERMS
INCLUDED IN SECTIONS 4 AND 5 OF THIS EXHIBIT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vi) confirms
that none of the funds, monies, assets or other consideration being used to make
the purchase and assumption hereunder are "plan assets" as defined under ERISA
and that its rights, benefits and interests in and under the Loan Documents will
not be "plan assets" under ERISA, [AND (vii) ATTACHES THE FORMS PRESCRIBED BY
THE INTERNAL REVENUE SERVICE OF THE UNITED STATES CERTIFYING THAT THE ASSIGNEE
IS ENTITLED TO RECEIVE PAYMENTS UNDER THE LOAN DOCUMENTS WITHOUT DEDUCTION OR
WITHHOLDING OF ANY UNITED STATES FEDERAL INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to SECTION 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under SECTIONS 4, 5 AND 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the percentage interest specified in Item 3 of Schedule 1 shall
remain the same, but the dollar amount purchased shall be recalculated based on
the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
__________________________________
Title:
__________________________________
__________________________________
__________________________________
[NAME OF ASSIGNEE]
By:
__________________________________
Title:
__________________________________
__________________________________
__________________________________
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ____________, 19____
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** ____%
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $________
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement _______________
6. Proposed Effective Date: _______________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _____________________ By: _____________________
Title: __________________ Title: __________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address and account information for the Assignor and the Assignee
EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
____________, 19__
To: [NAME OF ADMINISTRATIVE AGENT]
__________________
__________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Second Amended and Restated Unsecured
Revolving Credit Agreement (the "Credit Agreement") described in Item 1 of
Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings attributed to them in
the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Administrative Agent pursuant to SECTION 13.3.2 of the
Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of __________________, 19__ (the "Assignment"), pursuant
to which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement. From and after such purchase, the Assignee's Commitment shall be
the amount specified in Item 4 of Schedule 1 and the Assignor's Commitment
shall be the amount specified in Item 5 of Schedule 1. The Effective Date of
the Assignment shall be the later of the date specified in Item 5 of Schedule 1
or two (2) Business Days (or such shorter period as agreed to by the
Administrative Agent) after this Notice of Assignment and any fee required by
SECTION 13.3.2 of the Credit Agreement have been delivered to the
Administrative Agent, provided that the Effective Date shall not occur if any
condition precedent agreed to by the Assignor and the Assignee or set forth
in SECTION 13 of the Credit Agreement has not been satisfied.
4. The Assignor and the Assignee hereby give to the Administrative
Agent notice of the assignment and delegation referred to herein. The
Assignor will confer with the Administrative Agent before the date specified
in Item 6 of Schedule 1 to determine if the Assignment Agreement will become
effective on such date pursuant to SECTION 3 hereof, and will confer with the
Administrative Agent to determine the Effective Date pursuant to SECTION 3
hereof if it occurs thereafter. The Assignor shall notify the Administrative
Agent if the Assignment Agreement does not become effective on any proposed
Effective Date as a result of the failure to satisfy the conditions precedent
agreed to by the Assignor and the Assignee. At the request of the
Administrative Agent, the Assignor will give the Administrative Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative
Agent on or before the Effective Date the processing fee of $3,000 required
by SECTION 13.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor
and the Assignee request and direct that the Administrative Agent prepare and
cause the Borrower to execute and deliver new Notes or, as appropriate,
replacements notes, to the Assignor and the Assignee. The Assignor and, if
applicable, the Assignee each agree to deliver to the Administrative Agent
the original Note received by it from the Borrower upon its receipt of a new
Note in the appropriate amount.
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that
its rights, benefits, and interests in and under the Loan Documents will not
be "plan assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
agent under the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Administrative Agent has no duty to supply
information with respect to the Borrower or the Loan Documents to the
Assignee until the Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: _____________________ By: _____________________
Title: __________________ Title: __________________
ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent
By: _____________________
Title: __________________
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
EXHIBIT G
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago,
as Administrative Agent (the "Agent") under the Credit Agreement
Described Below
Re: Second Amended and Restated Unsecured Revolving Credit Agreement,
dated as of ____________, 1998 (as amended, modified, renewed or
extended from time to time, the "Agreement"), among CenterPoint
Properties Trust (the "Borrower"), The First National Bank of Chicago,
individually and as Administrative Agent, ▇▇▇▇▇▇ Brothers
Holdings Inc., individually and as Document Agent, and the Lenders
named therein. Terms used herein and not otherwise defined shall have
the meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Agent of a specific written revocation of such instructions by
the Borrower, provided, however, that the Administrative Agent may otherwise
transfer funds as hereafter directed in writing by the Borrower in accordance
with Section 14.1 of the Credit Agreement or based on any telephonic notice
made in accordance with SECTION 2.17 of the Credit Agreement.
Facility Identification Number(s) ______________________________________________
Customer/Account Name __________________________________________________________
Transfer Funds To ______________________________________________________________
______________________________________________________________
______________________________________________________________
For Account No. ________________________________________________________________
Reference/Attention To _________________________________________________________
Authorized Officer (Customer Representative) Date ____________________
__________________ ________________________
________________________________ ___________________________________
(PLEASE PRINT) SIGNATURE
Bank Officer Name Date ______________________________
________________________________ ___________________________________
(PLEASE PRINT) SIGNATURE
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT H
MINIMUM SPECIFICATIONS FOR ENVIRONMENTAL INVESTIGATIONS
The following are Guidelines for the qualification of firms and
environmental professionals and for information to be included in
Environmental Site Assessments. These standards include the minimum elements
common to acceptable site assessments. Generally, it is intended for the
standards to be consistent with those outlined in the American Society for
Testing and Materials ("ASTM") Designation: E 1527-93.
QUALIFICATIONS OF INVESTIGATING FIRM
The firm or environmental professional must have 5 years of experience
in hazardous substances investigation. The environmental professional
supervising and signing the report should be experienced in environmental
site investigations, and should have relevant environmental experience and
technical qualifications, such as demonstrated by professional registration
and/or advanced education in related disciplines. The firm or environmental
professional performing the work should have adequate professional liability
insurance. Borrower and Lenders may agree in advance on qualified firms or
environmental professionals that will conduct the Phase I Reports. Borrower
may from time to time select other firms or environmental professionals that
meet the minimum qualifications set out above to conduct a Phase I Report,
subject to approval of the Administrative Agent, which approval shall not be
unreasonably withheld or delayed.
DEPTH OF REPORTING REQUIRED
Phase I - consists of site description, review of historical and
regulatory data and physical inspection. The firm or environmental
professional will follow the standard practices set out in the ASTM E 1527-93
guidelines in conducting the Phase I Site Assessment and drafting the Report
and in preparing the Findings and Conclusions. All deletions and deviations
from the ASTM E 1527-93 guidelines shall be listed individually and in
detail. As an additional component of the Phase I Site Assessment, the firm
or environmental professional will conduct an asbestos survey or inspection
in accordance with the protocols set by OSHA under the Occupational Safety &
Health Act (including protocols set forth under the Asbestos Hazard Emergency
Response Act (AHERA) that are incorporated into the OSHA protocols) unless an
alternate protocol is approved by the Administrative Agent. In all events
such survey or inspection shall comply with all applicable Environmental
Laws, including, but not limited to, 29 C.F.R. Section 1910.1001. The firm
or environmental professional will also conduct a lead-based paint survey or
inspection when necessary, including but not limited to prior to demolition
or renovation work and as required by all applicable Environmental Laws,
including, but not limited to 29 C.F.R. Sections 1910.1025 and 1926.62. If no
potential contamination is indicated, the report should so state, and a
specific statement should be made that no further investigation is required.
Phase II - If a Phase I examination indicates the presence of recognized
environmental conditions which would warrant further appropriate inquiry, the
consultant should document the basis for that conclusion, recommend a testing
program for further evaluation, including the areas to be tested and, if
appropriate, the hazardous constituents of concern, sampling procedures to be
used and methods used to assess the samples. If after evaluating the
recommendation, the Borrower
determines that a Phase II is necessary, then the Borrower will request the
firm or environmental professional to prepare a bid, and may solicit
competitive bids from other firms or environmental professionals. The Phase II
Report should document the extent, and, if possible, source, of contamination
so that the Borrower can assess whether remediation is required under
applicable Environmental Laws. If the Borrower plans to conduct remediation
estimated to cost more than $250,000 for any Project, the Borrower will
promptly provide written notice to the Administrative Agent. If the Borrower
does not follow the recommendation of the firm or environmental professional
to conduct a Phase II investigation or remediation for any Project, the
Borrower will promptly provide written notice to the Administrative Agent.
RELIANCE ON PHASE I REPORT
The Phase I Report shall include a statement that the firm or
environmental professional acknowledges that the Lenders will be relying on
the Report.
EXHIBIT I
FORM OF DESIGNATION AGREEMENT
Dated ____________, 199___
Reference is made to the Second Amended and Restated Credit Agreement
dated as of ____________, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among CenterPoint
Properties Trust, a Maryland real estate investment trust (the "Borrower"),
the Banks parties thereto, and The First National Bank of Chicago, as
Administrative Agent (the "Administrative Agent") for the Banks. Terms
defined in the Credit Agreement are used herein with the same meaning.
____________ (the "Designor"), ____________ (the "Designee"), the
Administrative Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans
pursuant to Section 2.14 of the Credit Agreement. Any assignment by Designor
to Designee of its rights to make a Competitive Bid Loan pursuant to such
Section 2.14 shall be effective at the time of the funding for such
Competitive Bid Loan and not before such time.
2. The Designor makes no representation or warranty and assumes no
responsibility pursuant to this Designation Agreement with respect to (a) any
statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other
instrument and document furnished pursuant thereto and (b) the financial
condition of the Borrower or any Loan Party of the performance or observance
by the Borrower or any Loan Party or any of their respective obligations
under any Loan Document or any other instrument or document furnished
pursuant thereto. (It is acknowledged that the Designor may make
representations and warranties of the type described above in other
agreements to which the Designor is a party).
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 7.1 of the Credit Agreement and such other documents and information
as it has deemed appropriate to make its own independent credit analysis and
decision to enter into this Designation Agreement, (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the
Designor 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 Loan Document; (c) confirms
that it is a Designated Lender; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under any Loan Document as are delegated
to the Administrative Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto, and (e) agrees that it
will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Lender.
4. The Designee hereby appoints Designor as Designee's agent and
attorney in fact, and grants to Designor an irrevocable power of attorney, to
deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on Designee's behalf all rights to
vote and to grant and made approvals, waivers, consents or amendment to or
under the Credit Agreement or other Loan Documents. Any document executed by
the Designor on the Designee's behalf in connection with the Credit Agreement
or other Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Banks may rely on and are beneficiaries
of the preceding provisions.
5. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date
for this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on
the signature page thereto.
6. Neither the Administrative Agent nor the Borrower shall institute,
or join any other person in instituting, against the Designee any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law at any time
that the Designee has any outstanding debt or other securities which are
rated by S&P, ▇▇▇▇▇'▇ or any other rating agency or at any time within one
year and one day after the date such debt or other securities have been
repaid in full.
7. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or
asserted by any of the parties to the Loan Documents against the Designee, in
its capacity as such, in any way relating to or arising out of this
Designation Agreement or any other Loan Documents or any action taken or
omitted by the Designee hereunder or thereunder, PROVIDED that the Designor
shall not be liable for any portion of such liabilities, obligations, losses,
damage, penalties, actions, judgments, suits, costs, expenses or
disbursements if the same results from the Designee's gross negligence or
willful misconduct.
8. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make Competitive Bid Loans as pursuant to Section 2.14 of the
Credit Agreement and the rights and obligations of a Lender related thereto.
9. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to the
provisions thereof regarding conflicts of law.
10. This Designation Agreement may be executed in any number of
counterparts and by
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different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as of delivery of a manually executed
counterpart of this Designation Agreement.
-3-
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date(9) ____________, 199__
[NAME OF DESIGNOR], as Designor
___________________ By: ___________________________
___________________ Title: ________________________
[NAME OF DESIGNEE], as Designee
___________________ By: ___________________________
___________________ Title: ________________________
Applicable Lending Office (and
address for notices):
[ADDRESS]
Accepted this ____ day
of ____________, 199__
[AGENT], as Agent [BORROWER]
By: _______________________________ By: ___________________________
_______________
Title: ____________________________ Title: ________________________
_______________
____________________
(9) This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Administrative Agent.
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EXHIBIT J
AMENDMENT TO SECOND AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
This Amendment to the Second Amended and Restated Unsecured Revolving
Credit Agreement (the "Amendment") is made as of _______________, _____, by and
among Centerpoint Properties Trust ("Borrower"), The First National Bank of
Chicago, individually and as "Administrative Agent", and one or more new or
existing "Lenders" shown on the signature pages hereof.
R E C I T A L S
A. Borrower, Administrative Agent and certain other Lenders have entered
into a Second Amended and Restated Unsecured Revolving Credit Agreement dated
as of ____________, 1998 (as amended, the "Credit Agreement"). All
capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders initially
agreed to provide Borrower with a revolving credit facility in an aggregate
principal amount of up to $250,000,000. The Borrower, the Administrative
Agent and the Lenders now desire to amend the Credit Agreement in order to,
among other things (i) increase the Aggregate Commitment to $___,000,000; and
(ii) admit [NAME OF NEW BANKS] as "Lenders" under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated
into and made part of this Amendment.
2. From and after ____________, ____ (the "Effective Date") (i) [NAME OF
NEW BANKS] shall be considered as "Lenders" under the Credit Agreement and
the Loan Documents, and (ii) [NAME OF EXISTING LENDERS] shall each be deemed
to have increased its Commitment to the amount shown next to their respective
signatures on the signature pages of this Amendment, each having a Commitment
in the amount shown next to their respective signatures on the signature
pages of this Amendment. The Borrower shall, on or before the Effective
Date, execute and deliver to each of such new or existing Lenders a new or
amended and restated Note in the amount of such Commitment (and in the case
of a new Lender, a Competitive Bid Note as well).
3. From and after the Effective Date, the Aggregate Commitment shall
equal ______ Million Dollars ($___,000,000).
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4. For purposes of Section 14.1 of the Credit Agreement (Giving
Notice), the address(es) and facsimile number(s) for [NAME OF NEW BANKS]
shall be as specified below their respective signature(s) on the signature
pages of this Amendment.
5. The Borrower hereby represents and warrants that, as of the
Effective Date, there is no Default or Unmatured Default, the representations
and warranties contained in Article VI of the Credit Agreement are true and
correct as of such date and the Borrower has no offsets or claims against any
of the Lenders.
6. As expressly modified as provided herein, the Credit Agreement shall
continue in full force and effect.
7. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as
of the date first written above.
CENTERPOINT PROPERTIES TRUST, a THE FIRST NATIONAL BANK OF
Maryland real estate investment trust CHICAGO, Individually and as
Administrative Agent
By: _______________________
Print Name: _______________ By: ________________________
Title: ____________________ Print Name: ________________
Title: _____________________
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ One First National Plaza
Phone: ________________ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ____________ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇: $________ [NAME OF NEW LENDER]
________
By: ________________________
Print Name: ________________
Title: _____________________
[ADDRESS OF NEW LENDER]
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Phone: _____________________
Facsimile: _________________
Attention: _________________
-7-
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See SECTION 6.7)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Qualifying
Investment Description
Investment Owned Amount of Percent Jurisdiction of Affiliate Properties of Business
In By Investment Ownership Organization (Yes or No) Owned Operations
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
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SCHEDULE 2
UNENCUMBERED ASSETS
(See SECTION 6.24)
-----------------------------------------------------------------------------------------------------------------------------------
Project Name Date Placed Fee or If Leasehold,
and Address** Type of Project In Service Owned By Leasehold Ground Lessor
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------
** Those Properties identified with an asterisk are Restricted Unencumbered
Assets (as defined in SECTION 7.25).
SCHEDULE 3
INDEBTEDNESS AND LIENS
(See SECTION 7.16)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Maturity and
Indebtedness Indebtedness Property Amount of
Incurred By Owned To Encumbered Indebtedness
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 4
PLANS AND MULTIEMPLOYER PLANS
None.
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SCHEDULE 5
ENVIRONMENTAL DISCLOSURES
None.
-12-
SCHEDULE 6
NONCOMPLIANCE WITH LAWS
None.
-13-
SCHEDULE 7
LITIGATION AND INVESTIGATIONS
None.
-14-
SCHEDULE 8
CONTINGENT OBLIGATIONS
None.
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SCHEDULE 9
INDEBTEDNESS DEFAULTS
None.
-16-
