EXHIBIT 10
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TERM LOAN AGREEMENT
DATED AS OF DECEMBER 20, 2004
AMONG
AMLI RESIDENTIAL PROPERTIES, L.P.,
As Borrower
AMLI RESIDENTIAL PROPERTIES TRUST
As General Partner
THE LENDERS,
▇▇▇▇▇ FARGO BANK, N.A.
As Administrative Agent,
Sole Lead Arranger & Book Runner
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . 7
ARTICLE II THE CREDITS. . . . . . . . . . . . . . . . . . . 16
2.1. The Facility. . . . . . . . . . . . . . . . . . 16
2.2. Disbursement. . . . . . . . . . . . . . . . . . 17
2.3. Reserved. . . . . . . . . . . . . . . . . . . . 18
2.4. Method of Borrowing . . . . . . . . . . . . . . 18
2.5. Reserved. . . . . . . . . . . . . . . . . . . . 18
2.6. Reserved. . . . . . . . . . . . . . . . . . . . 18
2.7. Reserved. . . . . . . . . . . . . . . . . . . . 18
2.8. Optional Principal Payments . . . . . . . . . . 18
2.9. Changes in Interest Rate. etc.. . . . . . . . . 18
2.10. Rates Applicable After Default. . . . . . . . . 18
2.11. Method of Payment . . . . . . . . . . . . . . . 19
2.12. Notes; Evidence of Indebtedness . . . . . . . . 19
2.13. Funds Transfer Disbursements and
Telephonic Notices. . . . . . . . . . . . . . . 19
2.14. Interest Payment Dates; Interest
and Fee Basis . . . . . . . . . . . . . . . . . 20
2.15. Notification of Advances. Interest Rates.
Prepayments and Commitment Reductions . . . . . 20
2.16. Lending Installations . . . . . . . . . . . . . 20
2.17. Non-Receipt of Funds by the Agent . . . . . . . 21
2.18. Extension of Facility Termination Date. . . . . 21
2.19. Reserved. . . . . . . . . . . . . . . . . . . . 21
2.20. Reserved. . . . . . . . . . . . . . . . . . . . 21
ARTICLE III YIELD PROTECTION; TAXES. . . . . . . . . . . . . 21
3.1. Yield Protection. . . . . . . . . . . . . . . . 21
3.2. Changes in Capital Adequacy Regulations . . . . 22
3.3. Availability of Types of Advances . . . . . . . 22
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3.4. Funding Indemnification . . . . . . . . . . . . 22
3.5. Taxes . . . . . . . . . . . . . . . . . . . . . 23
3.6. Lender Statements; Survival of Indemnity. . . . 24
3.7. Replacement of Lender . . . . . . . . . . . . . 25
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . 25
4.1. Disbursement of Term Loan . . . . . . . . . . . 25
4.2. Each Credit Extension . . . . . . . . . . . . . 26
ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . 27
5.1. Existence and Standing. . . . . . . . . . . . . 27
5.2. Authorization and Validity. . . . . . . . . . . 27
5.3. No Conflict; Government Consent . . . . . . . . 27
5.4. Financial Statements. . . . . . . . . . . . . . 28
5.5. Material Adverse Change . . . . . . . . . . . . 28
5.6. Taxes . . . . . . . . . . . . . . . . . . . . . 28
5.7. Litigation and Contingent Obligations . . . . . 28
5.8. Subsidiaries. . . . . . . . . . . . . . . . . . 28
5.9. Intentionally Deleted . . . . . . . . . . . . . 28
5.10. Accuracy of Information . . . . . . . . . . . . 29
5.11. Regulation U. . . . . . . . . . . . . . . . . . 29
5.12. Material Agreements . . . . . . . . . . . . . . 29
5.13. Compliance With Laws. . . . . . . . . . . . . . 29
5.14. Ownership of Properties . . . . . . . . . . . . 29
5.15. Plan Assets; Prohibited Transactions. . . . . . 29
5.16. Environmental Matters . . . . . . . . . . . . . 29
5.17. Investment Company Act. . . . . . . . . . . . . 30
5.18. Public Utility Holding Company Act. . . . . . . 30
5.19. Insurance . . . . . . . . . . . . . . . . . . . 30
5.20. Unencumbered Assets . . . . . . . . . . . . . . 30
5.21. Status. . . . . . . . . . . . . . . . . . . . . 31
5.22. Reportable Transaction. . . . . . . . . . . . . 31
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ARTICLE VI COVENANTS. . . . . . . . . . . . . . . . . . . . 32
6.1. Financial Reporting . . . . . . . . . . . . . . 32
6.2. Use of Proceeds . . . . . . . . . . . . . . . . 33
6.3. Notice of Default . . . . . . . . . . . . . . . 33
6.4. Existence and Conduct of Operations . . . . . . 33
6.5. Taxes . . . . . . . . . . . . . . . . . . . . . 34
6.6. Insurance . . . . . . . . . . . . . . . . . . . 34
6.7. Compliance with Laws. . . . . . . . . . . . . . 34
6.8. Maintenance of Properties . . . . . . . . . . . 34
6.9. Inspection. . . . . . . . . . . . . . . . . . . 34
6.10. Dividends . . . . . . . . . . . . . . . . . . . 34
6.11. Maintenance of Status . . . . . . . . . . . . . 35
6.12. Merger. . . . . . . . . . . . . . . . . . . . . 35
6.13. Sale of Assets. . . . . . . . . . . . . . . . . 35
6.14. Investments . . . . . . . . . . . . . . . . . . 35
6.15. Liens . . . . . . . . . . . . . . . . . . . . . 35
6.16. Pre-Acquisition Environmental Investigations. . 36
6.17. Affiliates. . . . . . . . . . . . . . . . . . . 36
6.18. Notice of Rating Change . . . . . . . . . . . . 36
6.19. Interest Rate Hedging . . . . . . . . . . . . . 36
6.20. Environmental Matters . . . . . . . . . . . . . 36
6.21. Intentionally Omitted . . . . . . . . . . . . . 37
6.22. General Partner . . . . . . . . . . . . . . . . 37
6.23. Investment Affiliates . . . . . . . . . . . . . 37
6.24. Financial Covenants . . . . . . . . . . . . . . 37
ARTICLE VII DEFAULTS . . . . . . . . . . . . . . . . . . . . 38
7.1. Any representation or warranty. . . . . . . . . 38
7.2. Nonpayment of principal . . . . . . . . . . . . 38
7.3. The breach by the Borrower. . . . . . . . . . . 38
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7.4. The Breach by the Borrower. . . . . . . . . . . 38
7.5. Failure of the Borrower . . . . . . . . . . . . 38
7.6. The Borrower, the General Partner . . . . . . . 39
7.7. Without the application . . . . . . . . . . . . 39
7.8. Any court, government or governmental agency. . 39
7.9. The Borrower, General Partner . . . . . . . . . 39
7.10. Any Change in Control shall occur . . . . . . . 40
7.11. The Borrower or any of its Subsidiaries . . . . 40
7.12. The occurrence of any "default" . . . . . . . . 40
7.13. Any Guaranty. . . . . . . . . . . . . . . . . . 40
7.14. The representations and warranties. . . . . . . 40
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES . 40
8.1. Acceleration. . . . . . . . . . . . . . . . . . 40
8.2. Amendments. . . . . . . . . . . . . . . . . . . 40
8.3. Preservation of Rights. . . . . . . . . . . . . 41
ARTICLE IX GENERAL PROVISIONS . . . . . . . . . . . . . . . 41
9.1. Survival of Representations . . . . . . . . . . 41
9.2. Governmental Regulation . . . . . . . . . . . . 41
9.3. Headings. . . . . . . . . . . . . . . . . . . . 41
9.4. Entire Agreement. . . . . . . . . . . . . . . . 42
9.5. Several Obligations; Benefits
of this Agreement . . . . . . . . . . . . . . . 42
9.6. Expenses; Indemnification . . . . . . . . . . . 42
9.7. Numbers of Documents. . . . . . . . . . . . . . 42
9.8. Accounting. . . . . . . . . . . . . . . . . . . 42
9.9. Severability of Provisions. . . . . . . . . . . 43
9.10. Nonliability of Lenders . . . . . . . . . . . . 43
9.11. Confidentiality . . . . . . . . . . . . . . . . 43
9.12. Nonreliance . . . . . . . . . . . . . . . . . . 43
9.13. Disclosure. . . . . . . . . . . . . . . . . . . 43
9.14. USA Patriot Act Notice, Compliance. . . . . . . 44
9.15. Lender Approval Procedure . . . . . . . . . . . 44
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ARTICLE X THE AGENT. . . . . . . . . . . . . . . . . . . . 44
10.1. Appointment; Nature of Relationship . . . . . . 44
10.2. Powers. . . . . . . . . . . . . . . . . . . . . 45
10.3. General Immunity. . . . . . . . . . . . . . . . 45
10.4. No Responsibility for Loans, Recitals, etc;
Delivery of Information . . . . . . . . . . . . 45
10.5. Action on Instructions of Lenders . . . . . . . 45
10.6. Employment of Agents and Counsel. . . . . . . . 45
10.7. Reliance on Documents; Counsel. . . . . . . . . 46
10.8. Agent's Reimbursement and Indemnification . . . 46
10.9. Notice of Default . . . . . . . . . . . . . . . 46
10.10. Rights as a Lender. . . . . . . . . . . . . . . 46
10.11. Lender Credit Decision. . . . . . . . . . . . . 46
10.12. Successor Agent . . . . . . . . . . . . . . . . 47
10.13. Agent Fees. . . . . . . . . . . . . . . . . . . 47
10.14. Delegation to Affiliates. . . . . . . . . . . . 47
ARTICLE XI SETOFF; PAYMENTS; DEFAULTING LENDERS . . . . . . 47
11.1. Setoff. . . . . . . . . . . . . . . . . . . . . 47
11.2. Payments. . . . . . . . . . . . . . . . . . . . 48
11.3. Defaulting Lenders. . . . . . . . . . . . . . . 48
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS . . . . . . . . . . . . . . . . . 49
12.1. Successors and Assigns. . . . . . . . . . . . . 49
12.2. Participations. . . . . . . . . . . . . . . . . 49
12.3. Assignments . . . . . . . . . . . . . . . . . . 50
12.4. Dissemination of Information. . . . . . . . . . 51
12.5. Tax Treatment . . . . . . . . . . . . . . . . . 51
ARTICLE XIII NOTICES . . . . . . . . . . . . . . . . . . . . 51
13.1. Notices . . . . . . . . . . . . . . . . . . . . 51
13.2. Change of Address . . . . . . . . . . . . . . . 52
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ARTICLE XIV COUNTERPARTS . . . . . . . . . . . . . . . . . . 52
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 52
15.1. Choice of Law . . . . . . . . . . . . . . . . . 52
15.2. Consent to Jurisdiction . . . . . . . . . . . . 52
15.3. Waiver of Jury Trial. . . . . . . . . . . . . . 52
ARTICLE XVI EXCULPATION. . . . . . . . . . . . . . . . . . . 53
PRICING SCHEDULE
EXHIBITS
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Exhibit A - Form of Opinion
Exhibit B - Compliance Certificate
Exhibit C - Assignment and Assumption Agreement
Exhibit D - Funds Transfer Form
Exhibit E - Note
Exhibit F - Reserved
Exhibit G - Reserved
Exhibit H - Reserved
Exhibit I - Amendment Regarding Increase
SCHEDULES
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Schedule 1 - Subsidiaries and Other Investments
Schedule 2 - Indebtedness and Liens
Schedule 3 - Litigation and Contingent Liabilities
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TERM LOAN AGREEMENT
This Agreement, dated as of December 20, 2004, is among AMLI
Residential Properties, L.P., a Delaware limited partnership, as Borrower,
AMLI Residential Properties Trust, a Maryland real estate investment trust,
as General Partner, the Lenders, and ▇▇▇▇▇ Fargo Bank, N.A., a national
banking association, as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement:
"Acquisition Property Valuation" means, as to any acquired Real
Estate, the lower of cost or market value for the first four full fiscal
quarters after the purchase date.
"Advance" means a portion of the borrowing under Section 2.2 hereof
of the same Type and, in the case of Eurodollar Loans, for the same
Interest Period.
"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 and 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.
"Agent" means ▇▇▇▇▇ Fargo Bank, N.A., in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Agent appointed pursuant
to Article X.
"Aggregate Commitment" means $110,000,000.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in
Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Cap Rate" means 8.15% during the initial term of the Term
Loan, and during the term of any extension, such rate as may be agreed upon
by the Required Lenders and disclosed to the Borrower at the time of any
extension pursuant to Section 2.18 hereof.
"Applicable Margin" means, the percentage rate per annum which is
applicable at such time with respect to Advances of such Type as set forth
in the Pricing Schedule.
1
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Officer" means with respect to any entity, the President,
any Vice President or the Chief Financial Officer of such entity if it is a
corporation or of such entity's general partner if it is a partnership.
"Borrower" means AMLI Residential Properties, L.P., a Delaware
limited partnership, and its permitted successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.2.3.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in San Francisco, California and
New York City for the conduct of substantially all of their commercial
lending activities, interbank wire transfers can be made on the Fedwire
system and 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 San Francisco,
California for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"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
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper
rated A-l or better by S&P or P-l or better by Moody's, (iii) demand
deposit accounts maintained in the ordinary course of business, and (iv)
certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000; provided in each case that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and
is not subject to any contingency regarding the payment of principal or
interest.
"Change in Control" means (i) the General Partner shall no longer be
the sole general partner of the Borrower, (ii) any Person or two or more
Persons other than the General Partner acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) of 25% or more of the outstanding partnership interests of Borrower;
or (iii) as of any date a majority of the Board of Directors of General
Partner consists of individuals who were not either (A) directors of the
General Partner as of the corresponding date of the previous year, (B)
selected or nominated to become directors by the Board of Directors of the
General Partner of which a majority consisted of individuals described in
clause (A), or (C) selected or nominated to become directors by the Board
of Directors of the General Partner of which a majority consisted of
individual described in clause (A) and individuals described in clause (B).
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
2
"Commitment" means, for each Lender, the obligation of such Lender to
make a Loan to the Borrower in an amount not exceeding the amount set forth
opposite its signature below.
"Consolidated Group" means the Borrower, General Partner and all
Subsidiaries which are consolidated with the General Partner for financial
reporting purposes under Agreement Accounting Principles.
"Consolidated Group Pro Rata Share" means, with respect to any
Investment Affiliate, the percentage of the total equity ownership
interests held by the Consolidated Group in the aggregate, in such
Investment Affiliate determined by calculating the greater of (i) the
percentage of the issued and outstanding stock, partnership interests or
membership interests in such Investment Affiliate held by the Consolidated
Group in the aggregate and (ii) the percentage of the total book value of
such Investment Affiliate that would be received by the Consolidated Group
in the aggregate, upon liquidation of such Investment Affiliate, after
repayment in full of all Indebtedness of such Investment Affiliate.
"Consolidated Interest Expense" means, for any period without
duplication, the sum of (a) the amount of interest expense, determined in
accordance with Agreement Accounting Principles, of the Consolidated Group
for such period attributable to Consolidated Outstanding Indebtedness
during such period plus (b) the Consolidated Group Pro Rata Share of any
interest expense, determined in accordance with Agreement Accounting
Principles, of any Investment Affiliate, for such period, whether recourse
or non-recourse, less (c) with respect to each direct or indirect
consolidated Subsidiary of the Borrower which is not a Wholly-Owned
Subsidiary of Borrower, a percentage of any interest expense attributable
to such consolidated Subsidiary which is included under clause (a) of this
definition and which is not related to Indebtedness which is a Guarantee
Obligation of the Borrower or General Partner equal to the percentage
ownership interest in such consolidated Subsidiary which is not held
directly or indirectly by the Borrower.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated
basis in accordance with Agreement Accounting Principles, plus (b) the
applicable Consolidated Group Pro Rata Share of any Indebtedness of each
Investment Affiliate other than Indebtedness of such Investment Affiliate
to a member of the Consolidated Group.
"Consolidated Secured Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) the aggregate principal
amount of that portion of the Consolidated Outstanding Indebtedness which
is secured by any Lien on the Property of Borrower or its Subsidiaries,
without regard to recourse, plus (b) the excess, if any, over $5,000,000,
of the sum of (x) the aggregate principal amount of all Senior Unsecured
Indebtedness of the Subsidiaries of the Borrower which have not furnished
Subsidiary Guaranties, determined on a consolidated basis in accordance
with Agreement Accounting Principles and (y) a percentage of the aggregate
principal amount of all Indebtedness of each Investment Affiliate equal to
the greater of (x) the percentage of such Indebtedness for which any member
of the Consolidated Group is liable and (z) the Consolidated Group Pro Rata
Share of such Investment Affiliate.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any of its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.2.4.
3
"Credit Extension" means the making of an Advance.
"Credit Extension Date" means the Borrowing Date for the Advance to
be made hereunder, and the Borrowing Date for any additional Advance made
pursuant to Section 2.1.2 in connection with an increase of the Term Loan.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender which fails or refuses to
perform any of its obligations under this Agreement within the time period
specified for performance of such obligation, or, if no time frame is
specified, if such failure or refusal continues for a period of five
Business Days after written notice from the Agent, provided that if such
Lender cures such failure or refusal, such Lender shall cease to be a
Defaulting Lender.
"Development Property Valuation" means, as to any Development
Property, the project cost until after the earlier of(i) the first annual
anniversary date of the date on which such Development Property was
completed, or (ii) the first fiscal quarter in which the occupancy rate for
the average number of units (computed on a weighted average basis) in such
Development Property is at least 85% (the earlier of(i) and (ii) is
hereinafter referred to as the "Transition Date"), at which time it means
(a) for the first fiscal quarter after the Transition Date,
the quotient obtained by dividing (i) Net Operating Income of such
Development Property for such quarter multiplied by four and (ii) a
capitalization rate equal to the Applicable Cap Rate; or
(b) for the second fiscal quarter after the Transition Date,
the quotient obtained by dividing (i) Net Operating Income of such
Development Property for such most recent two quarters multiplied by
two and (ii) a capitalization rate equal to the Applicable Cap Rate;
or
(c) for the third fiscal quarter after the Transition Date,
the quotient obtained by dividing (i) Net Operating Income of such
Development Property for such most recent three quarters multiplied
by four thirds and (ii) a capitalization rate equal to the Applicable
Cap Rate.
"Development Properties" means Real Estate comprised of multi-family
projects under construction, under major renovation, in pre-construction
phases of the development process, but not yet completed, or which have
been completed for less than four (4) quarters after the relevant
Transition Date.
"EBITDA" means, for any Person for any period, the sum of (a) Net
Income, plus (b) depreciation and amortization expense, plus (c) interest
expense, plus (d) income taxes deducted from Net Income in accordance with
Agreement Accounting Principles, plus (e) extraordinary losses (and any
unusual losses arising in or outside the ordinary course of business of
such Person not included in extraordinary losses) determined in accordance
with Agreement Accounting Principles that have been reflected in the
determination of Net Income, minus (f) extraordinary gains (and any unusual
gains arising in or outside the ordinary course of business of such Person
not included in extraordinary gains) determined in accordance with
Agreement Accounting Principles that have been reflected in the
determination of Net Income, minus (g) earnings of consolidated
Subsidiaries which are not Wholly-Owned Subsidiaries for such period
distributed to minority interests not previously deducted in the
calculation of Net Income. With regard to the foregoing sentence, for each
consolidated Subsidiary of the Borrower in which the Borrower does not
directly or indirectly hold a 100% ownership interest, each of clauses (e)
and (f) shall exclude the prorata share of such item attributable to
minority interest holders which do not hold operating partnership units
convertible to stock in the General Partner.
4
"Eligible Assignee" means any Person that is: (a) an existing Lender;
(b) a commercial bank, trust company, savings and loan association, savings
bank, insurance company, investment bank or pension fund organized under
the laws of the United States of America, any state thereof or the District
of Columbia, and having total assets in excess of $5,000,000,000; or (c) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Co-operation and Development, or a
political subdivision of any such country, and having total assets in
excess of $10,000,000,000, provided that such bank is acting through a
branch or agency located in the United States of America. If such entity is
not currently a Lender, such entity's (or in the case of a bank which is a
subsidiary, such bank's parent's) senior unsecured long term indebtedness
must be rated BBB or higher by S&P, Baa2 or higher by ▇▇▇▇▇'▇ Investor
Service or the equivalent or higher of either such rating by another
rating agency acceptable to the Agent.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other governmental
restrictions relating to (i) the protection of the environment, (ii) the
effect of the environment on human health, (iii) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or wastes into
surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate requested by the Borrower pursuant to Section 2.2.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance
for the relevant Eurodollar Interest Period the rate of interest, quoted by
Agent as per a generally recognized financial information service as the
London Inter-Bank Offered Rate for deposits in U.S. Dollars at
approximately 9:00 a.m. California time two Business Days before the start
of the Eurodollar Interest Period, for a Eurodollar Interest Period, as
appropriate, for purposes of calculating effective rates of interest for
loans or obligations making reference thereto for an amount approximately
equal to the amount of the Eurodollar Advance and for a period of time
approximately equal to the Eurodollar Interest Period.
"Eurodollar Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. A Eurodollar
Interest Period of one, two, three or six months shall end on the day which
corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month,
such Eurodollar Interest Period shall end on the last Business Day of such
next, second, third or sixth succeeding month. If a Eurodollar Interest
Period would otherwise end on a day which is not a Business Day, such
Eurodollar Interest Period shall end on the next succeeding Business Day,
provided, however, that if, with respect to a one, two, three or six month
Interest Period, said next succeeding Business Day falls in a new calendar
month, such Eurodollar Interest Period shall end on the immediately
preceding Business Day. Notwithstanding the foregoing, in no event shall a
Eurodollar Interest Period end after the Facility Termination Date.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar
Rate requested by the Borrower pursuant to Section 2.2.
5
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of(i) the quotient of (a) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided
by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to such Eurodollar Interest Period, plus (ii) the Applicable
Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by (i) the jurisdiction under
the laws of which such Lender or the Agent is incorporated or organized or
(ii) the jurisdiction in which the Agent's or such Lender's principal
executive office or such Lender's applicable Lending Installation is
located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Request" is defined in Section 2.18.
"Facility Termination Date" means December 20, 2008 or any later date
as may be specified as the Facility Termination Date in accordance with
Section 2.18.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations on such
day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole
discretion.
"Financeable Ground Leases" means, a ground lease reasonably
satisfactory to the Administrative Agent, which must provide customary
protections for a potential leasehold mortgagee ("Mortgagee") which
include, among other things (i) a remaining term, including any optional
extension terms exercisable unilaterally by the tenant, of no less than 25
years from the date hereof, (ii) that the ground lease will not be
terminated until the Mortgagee has received notice of a default, has had a
reasonable opportunity to cure or complete foreclosure, and has failed to
do so, (iii) provision for a new lease on the same terms to the Mortgagee
as tenant if the ground lease is terminated for any reason, (iv)
transferability of the tenant's interest under the ground lease without any
requirement for consent of the ground lessor unless based on delivery of
customary assignment and assumption agreements from the transferor and
transferee, (v) the ability of the tenant to mortgage tenant's interest
under the ground lease without any requirement for consent of the ground
lessor, and (vi) that the tenant under the ground lease is entitled to all
insurance proceeds and condemnation awards (other than the amount
attributable to landlord's fee interest in the land if an adjustment in
rent is provided for in connection therewith).
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other
financial instrument with similar characteristics or (ii) any Rate
Management Transaction.
"Fixed Charges" shall mean, for any period, the sum of(i)
Consolidated Interest Expense, (ii) all scheduled principal payments due on
account of Consolidated Outstanding Indebtedness (excluding balloon
payments), (iii) all dividends payable on account of preferred stock of the
General Partner or preferred operating partnership units of the Borrower or
any other Person in the Consolidated Group and (iv) all current amounts due
under Capitalized Lease Obligations of the Borrower and any other Person in
the Consolidated Group.
6
"Fixed Rate" means the Eurodollar Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each
case changing when and as the Alternate Base Rate or Applicable Margin
changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.10, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.10, bears interest at the Floating Rate.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Funds From Operations" means Net Income excluding gains (or losses)
from sales of income producing property held for investment, plus
depreciation and amortization, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated
partnerships and joint ventures will be calculated to reflect funds from
operations on the same basis. The foregoing definition shall be deemed
amended from time to time to be consistent with the definition of Funds
From Operations promulgated by the National Association of Real Estate
Investment Trusts.
"General Partner" means AMLI Residential Properties Trust, a Maryland
real estate investment trust that is listed on the New York Stock Exchange.
General Partner is the sole general partner of Borrower.
"Guarantors" means collectively, the General Partner and each
Material Subsidiary of the Borrower or the General Partner, including
Material Subsidiaries formed or acquired after the date hereof.
"Guaranty" means that certain Guaranty executed by the Guarantors in
favor of the Agent, for the ratable benefit of the Lenders, as it may be
amended or modified and in effect from time to time.
"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 therefore, (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
7
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. The amount of Guarantee Obligations pertaining to
Investment Affiliates will be net of the pro rata share of any rights of
reimbursements, indemnification, or contribution obligations provided by
any non-Consolidated Group member or partner who in the Agent's judgment is
a creditworthy institutional investor.
"Improvements" means all improvements now or at any time hereafter
located on any of the Real Estate (or any designated part thereof).
"Indebtedness" of any Person at any date means, without duplication,
(a) all indebtedness of such Person for borrowed money including without
limitation any repurchase obligation or liability of such Person with
respect to securities, accounts or notes receivable sold by such Person,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities 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 Agreement Accounting Principles, (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (d) all Capitalized Lease Obligations of such Person, (e) all
obligations of such Person in respect of acceptances issued or created for
the account of such Person, (f) all Guarantee Obligations of such Person
(excluding in any calculation of consolidated Indebtedness of the
Consolidated Group, Guarantee Obligations of one member of the Consolidated
Group in respect of primary obligations of any other member of the
Consolidated Group), (g) all reimbursement obligations of such Person for
letters of credit and other contingent liabilities, (h) any Net
▇▇▇▇-to-Market Exposure and (i) all liabilities secured by any lien (other
than liens for taxes not yet due and payable) on any property owned by such
Person if such Person has not assumed or otherwise become liable for the
payment thereof (limited to the lesser of the recourse to such property and
the fair market value of such property).
"Interest Period" means a Eurodollar 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), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in
the trade) or contribution of capital by such Person; stocks, bonds, mutual
funds, partnership interests, notes, debentures or other securities owned
by such Person; any deposit accounts and certificate of deposit owned by
such Person; and structured notes, derivative financial instruments and
other similar instruments or contracts owned by such Person.
"Investment Affiliate" means any Person in which the Consolidated
Group, directly or indirectly, has an ownership interest, whose financial
results are not consolidated under Agreement Accounting Principles with the
financial results of the Consolidated Group.
"Lenders" means the lending institutions listed on the signature
pages of this Agreement or who become Lenders pursuant to Section 2.1.2 or
Section 12.3 and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent
listed on the signature pages hereof or on a Schedule or otherwise selected
by such Lender or the Agent pursuant to Section 2.16.
8
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any
way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or other arrangement granting
preferential rights to an asset in connection with a creditor's claim 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 interest of a lessor
under an operating lease).
"Loan" means a Loan made by a Lender pursuant to Section 2.2 hereof.
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.12, and the Guaranty.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition of the Borrower, the General Partner and their
Subsidiaries taken as a whole as represented in the most recent financial
statements delivered pursuant to Section 6.1, (ii) the ability of the
Borrower or any Guarantor to perform its material obligations under the
Loan Documents to which it is a party, or (iii) the validity or
enforceability of the material provisions of any of the Loan Documents or
the material rights or remedies of the Agent or the Lenders thereunder.
"Material Indebtedness" means either (i) Recourse Indebtedness in an
outstanding principal amount of $10,000,000 or more in the aggregate (or
the equivalent thereof in any currency other than U.S. dollars) or (ii)
Non-Recourse Indebtedness in an outstanding principal amount of $25,000,000
or more in the aggregate (or the equivalent thereof in any currency other
than U.S. Dollars or (iii) Rate Management Transactions with a Net
Market-to-Market Exposure of $5,000,000 or more in the aggregate, provided
that, in the case of Non-Recourse Indebtedness of an Investment Affiliate
only the Consolidated Group Pro Rata Share of such Non-Recourse
Indebtedness shall be included in the determination of whether such
Indebtedness is Material Indebtedness.
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting
Material Indebtedness is outstanding thereunder).
"Material Subsidiary" means AMLI Management Company, AMLI Residential
Construction, LLC and any additional Wholly-Owned Subsidiaries which in
Agent's discretion are determined in the future, to contribute materially
to the Borrower's core business activities, except that Agent shall not
require a special purpose entity set up to own specific assets in
connection with the secured financing of such assets to be a Guarantor.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
which issues financial ratings.
"Monetary Default" means any Default or Unmatured Default involving
Borrower's failure to pay any of the Obligations when due.
"Net Income" means net income determined in accordance with Agreement
Accounting Principles.
9
"Net ▇▇▇▇-to-Market Exposure" of a Person means, as of any date of
determination, the amount required to be reported as a liability of such
Person arising from Rate Management Transactions in accordance with
Agreement Accounting Principles.
"Net Operating Income" means operating income from Real Estate (as
determined in accordance with Agreement Accounting Principles) minus (a)
all operating expenses (as determined in accordance with Agreement
Accounting Principles but excluding exterior painting, parking lot
maintenance and roofing expenses which could qualify for capitalization
under Agreement Accounting Principles) incurred in connection with and
directly attributable to the generation of such operating income but
excluding interest expense and other debt service charges and any non-cash
charges such as depreciation or amortization of financing costs, (b) an
assumed management fee equal to 4% of gross rental income (less any
management fees included in Property expenses under clause (a)) and (c) an
annual capital reserve equal to $150 for each Unit.
"Net Worth" means, at any date, with respect to any Person the amount
of consolidated stockholders', members' or partners' (as applicable) equity
of such Person and its consolidated Subsidiaries as shown on its balance
sheet as of such date in accordance with Agreement Accounting Principles.
"Non-Recourse Indebtedness" means Indebtedness for which recourse is
limited (except for customary non-recourse carveouts, environmental
guarantees or deeply subordinated guarantees executed by Persons owning
minority interests in the Borrower or a Subsidiary in order to preserve
such Person's tax basis) to collateral pledged to secure repayment of such
Indebtedness.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.12 to evidence its Loans in the form of Exhibit E
hereto and "Notes" means, collectively, all of the individual Notes which
may be issued hereunder.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Credit Extensions, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Borrower
to the Lenders or to any Lender, the Agent or any indemnified party arising
under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time,
the sum of the aggregate principal amount of its Loans outstanding at such
time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, 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.
10
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced from time to time by Agent or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as
said prime rate changes.
"Property" mean, collectively, the Real Estate, the Improvements, and
all other real or personal property and assets, and any interests therein.
"Pro Rata Share" means, with respect to a Lender, a portion equal to
a fraction the numerator of which is such Lender's Commitment and the
denominator of which is the Aggregate Commitment, provided that after
disbursement of the Term Loan to be made hereunder, it shall be equal to a
fraction in the numeration of which the Outstanding Credit Exposure of such
Lender and the denominator of which is the Aggregate Outstanding Credit
Exposure.
"Purchasers" is defined in Section 12.3.1.
"Qualifying Investment Affiliate" means any Subsidiary or Investment
Affiliate with respect to which (i) the Borrower directly or indirectly
through one of its 90% or more owned Subsidiaries has management control
and (ii) the sale or financing of any Property owned by such entity is
substantially controlled by Borrower, subject to customary provisions set
forth in the organizational documents of such entity with respect to
refinancing or rights of first refusal or first offer granted to other
members of such entity. For purposes of the preceding sentence, the sale or
financing of a Property owned by a Qualifying Investment Affiliate shall be
deemed to be substantially controlled by Borrower if Borrower directly or
indirectly through one of its 90% or more owned Subsidiaries has the
ability to exercise a buy/sell right in the event of a disagreement
regarding the sale or financing of such Property and such buy/sell
provision is consistent with the following guidelines for the purchase/sale
of a Person's ownership interest in such entity or a Property owned by such
entity:
(a) The buy/sell provision may be invoked by either member of
a Qualifying Investment Affiliate if they fail to agree upon a major
decision concerning a Property or as otherwise specified in the
organization documents of the Qualifying Investment Affiliate;
(b) The initiating member is required to deliver notice to
the other member of its intent to initiate the buy-sell provision and
state the cash purchase price such member is willing to pay for the
Property or the other member's ownership interest in the Qualifying
Investment Affiliate (as applicable);
(c) The responding member shall have not more than sixty (60)
days within which to elect to either (a) sell the Property or its
entire ownership interest (as applicable) to the offering member, or
(b) purchase the Property or such offering member's ownership
interest (as applicable); and
(d) The closing shall occur within one hundred eighty (180)
days after the date of the original notice from the initiating
member.
In no event shall a Subsidiary or Investment Affiliate be a
Qualifying Investment Affiliate if it has Indebtedness that is recourse to
the Subsidiary or Investment Affiliate other than in respect of trade
payables in the ordinary course of business.
11
In addition to the above, an Investment Affiliate shall only be
considered a Qualifying Investment Affiliate if the non-Consolidated Group
members are sponsors or affiliates of one of the following:
(a) New York State Common Retirement Fund;
(b) Endowment Realty Investors;
(c) PRISA I or PRISA II, or other similar affiliate of, or
fund sponsored by, Prudential Financial, Inc. or Prudential
Investment Management, Inc.;
(d) Northwestern Mutual Life Insurance Company; or
(e) Any other institutional investor of similar standing to
the foregoing, including its affiliates, that has at least
$500,000,000 of assets under management and is acceptable to the
Agent in its sole discretion.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered by the
Borrower which is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
"Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all Rate Management Transactions, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any
Rate Management Transactions.
"Rating Period" means any period prior to the Facility Termination
Date during which the Borrower's or General Partner's long-term, senior
unsecured debt has been rated by either S&P or Moody's at least BBB- (S&P)
or Baa3 (Moody's).
"Real Estate" means all real property and Improvements at any time
owned or leased (as lessee or sublessee).
"Recourse Indebtedness" means Indebtedness other than Non-Recourse
Indebtedness.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"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.
12
"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 has 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.
"Reports" is defined in Section 9.6.
"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
Outstanding Credit Exposure (not held by Defaulting Lenders who are not
entitled to vote).
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc., or any successor which issues financial
ratings.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Service Companies" means AMLI Management Company, AMLI Residential
Construction, LLC and AMLI Institutional Advisors, Inc.
"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" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than 50%
of the ownership interests having ordinary voting power of which shall at
the time be so owned or controlled, or (iii) a Qualifying Investment
Affiliate. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower or the General
Partner.
"Substantial Portion" means assets which represent more than 20% of
Total Asset Value.
"Tangible Net Worth" means, at any date, the Net Worth of the General
Partner including the book value of redeemable convertible preferred shares
and minority interests, less the aggregate amount of all goodwill and other
assets that are properly classified as "intangible assets" at such date in
accordance with Agreement Accounting Principles.
13
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities
with respect to the foregoing, but excluding Excluded Taxes and Other
Taxes.
"Term Loan" means the Loans to be made hereunder in a single
disbursement (except for any additional disbursement made in connection
with an increase in the amount of the Aggregate Commitment in accordance
with Section 2.1.2 hereof) in the amount of the Aggregate Commitment.
"Total Asset Value" means on any date of determination, the sum of
the following, without duplication: (a) all cash and Cash Equivalent
Investments of the Consolidated Group and the Consolidated Group Pro Rata
Share of Investment Affiliates, excluding restricted cash and
non-refundable escrow deposits made and refundable security deposits held,
plus (b) the aggregate value of all Development Properties of both the
Consolidated Group and the Consolidated Group Pro Rata Share of Investment
Affiliates, determined by the Development Property Valuation, plus (c) the
quotient obtained by dividing (i) trailing four quarters Net Operating
Income of the Consolidated Group and the Consolidated Group Pro Rata Share
of Investment Affiliates from completed and stabilized Real Estate (i.e.
adjusted to exclude in the calculation thereof any income included under
preceding clause (b) and income from acquired Real Estate included under
clause (d) below) by (ii) a capitalization rate equal to the Applicable Cap
Rate, plus (d) the aggregate value of all Real Estate acquired by the
Consolidated Group and the Consolidated Group Pro Rata Share of such Real
Estate acquired by an Investment Affiliate, determined by the Acquisition
Property Valuation, plus (e) the lower of cost or market value of all
Unimproved Land of the Consolidated Group and the Consolidated Group Pro
Rata Share of Investment Affiliates, plus (f) the book value of notes,
mortgages, stock holdings, non-apartment properties and other evidences of
indebtedness held by the Consolidated Group and the Consolidated Group Pro
Rata Share of the book value of such assets held by Investment Affiliates,
and (g) the quotient obtained by dividing (i) trailing four quarter EBITDA
as of the last day of the immediately preceding calendar quarter from
Service Companies of the Consolidated Group or the Consolidated Group Pro
Rata Share of trailing four quarter EBITDA as of the last day of the
immediately preceding calendar quarter from Investment Affiliates whose
principle activity is not owning income producing Real Estate assets, by
(ii) a capitalization rate equal to 15% per annum.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unencumbered Asset" means, any multi-family property located in the
United States 100% of which is owned in fee simple or leased fee under a
Financable Ground Lease by the Borrower or a Guarantor, or is owned by a
Qualifying Investment Affiliate which, as of any date of determination or
for the applicable period, (a) except as permitted by Section 6.15 (i)-(iv)
below is not subject to any Liens or claims (including restrictions on
transferability or assignability) of any kind (including any such Lien,
claim or restriction imposed by any applicable organizational documents of
any Subsidiary other than rights of members or partners in Qualifying
Investment Affiliates to approve sales and financings and buy-sell, first
refusal or similar rights in favor of members or partners in Qualifying
Investment Affiliates in the event of a disagreement respecting sale or
financing), (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) any applicable organizational
document which prohibits or limits the ability of the Borrower or any
Guarantor or any Qualified Investment Affiliate to create, incur, assume or
14
suffer to exist any Lien upon any assets or Capital Stock of the Borrower
or any Guarantor or any Qualified Investment Affiliate, including, without
limitation, any negative pledge or similar covenant or restriction, other
than rights of members or partners in Qualifying Investment Affiliates to
approve sales and financings and buy-sell, first refusal or similar rights
in favor of members or partners in Qualifying Investment Affiliates in the
event of a disagreement respecting sale or financing) (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 on any assets or Capital Stock of the
Borrower or any Guarantor or any Qualifying Investment Affiliate, or would
entitle any Person to the benefit of any Lien on such assets or Capital
Stock upon the occurrence of any contingency (including, without
limitation, pursuant to an "equal and ratable" clause), and (d) either has
been improved with an income-producing building or buildings which are
substantially completed and occupied or is currently a Development
Property. For the purposes of this Agreement, any Property of a Guarantor
or a Qualifying Investment Affiliate shall not be deemed to be unencumbered
unless (i) both such Property and all Capital Stock of such Guarantor or
Qualifying Investment Affiliate held directly or indirectly by the Borrower
is unencumbered, (ii) each intervening entity between the Borrower and such
Guarantor or Qualifying Investment Affiliate does not have any Indebtedness
for borrowed money or, if such entity has any Indebtedness, such
Indebtedness is unsecured and the entity is a Guarantor or a Qualifying
Investment Affiliate and (iii) no event has occurred or condition exists
described in Section 7.6 or 7.7 hereof with respect to a Qualifying
Investment Affiliate (regardless of the Total Asset Value attributable to
such Qualifying Investment Affiliate).
"Unencumbered Asset Value" means the sum of (a) all cash and Cash
Equivalent Investments of the Consolidated Group and the Consolidated Group
Pro Rata Share of Qualifying Investment Affiliates, excluding restricted
cash and non-refundable escrow deposits made and refundable security
deposits held, plus (b) the quotient obtained by dividing (i) trailing four
quarters Unencumbered Net Operating Income of the Consolidated Group minus
the Unencumbered Net Operating Income from properties sold by the
Consolidated Group during the trailing quarters, by (ii) a capitalization
rate equal to the Applicable Cap Rate, plus (c) 75% of the quotient
obtained by dividing (i) trailing four quarters Unencumbered Net Operating
Income of the Consolidated Group Pro Rata Share of Qualifying Investment
Affiliates minus Consolidated Group Pro Rata Share of the Unencumbered Net
Operating Income from properties sold by Qualifying Investment Affiliates
during the trailing four quarters, by (ii) a capitalization rate equal to
the Applicable Cap Rate plus 75% of the value of the Consolidated Group Pro
Rata Share of Unencumbered Assets owned by Qualifying Investment Affiliates
for less than four full fiscal quarters as determined by the Acquisition
Property Valuation, plus (d) the value of Unencumbered Assets owned by the
Consolidated Group for less than four full fiscal quarters as determined by
the Acquisition Property Valuation, plus (e) 75% of the aggregate value of
Development Properties, determined by the Development Property Valuation,
of the Consolidated Group that meet the criteria of an Unencumbered Asset,
plus (f) the lower of cost or market value of Borrower's Atlanta
headquarters, as long as such property meets the definition of an
Unencumbered Asset (with the exception of clause (d) in the definition of
Unencumbered Asset). At no time shall clauses (c) and (e) above be
individually greater than 15% and 10%, respectively, of the Unencumbered
Asset Value. At no time shall more than 10% of the Unencumbered Asset Value
be attributable to Properties subject to a Financable Ground Lease.
"Unencumbered Net Operating Income" means Net Operating Income
generated by Unencumbered Assets.
"Unimproved Land" means Real Estate upon which no improvements have
been started or completed.
15
"Unit" means an individual apartment unit located in a multi-family
property.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unsecured Indebtedness" means Indebtedness for which no collateral
has been pledged to secure repayment.
"Unsecured Interest Expense" means Consolidated Interest Expense
attributable to Unsecured Indebtedness.
"Value of Investment Affiliates" means on any date of determination,
the sum of the following, without duplication: (a) all cash and Cash
Equivalent Investments of the Consolidated Group Pro Rata Share of
Investment Affiliates, excluding restricted cash and non refundable escrow
deposits made and refundable security deposits held, plus (b) the aggregate
value of all Development Properties of the Consolidated Group Pro Rata
Share of Investment Affiliates, determined by the Development Property
Valuation, plus (c) the quotient obtained by dividing (i) trailing four
quarters Net Operating Income of the Consolidated Group Pro Rate Share of
Investment Affiliates from completed and stabilized Real Estate (i.e.
adjusted to exclude in the calculation thereof any income included under
preceding clause (b) and income from acquired Real Estate included under
clause (d) below) by (ii) a capitalization rate equal to the Applicable Cap
Rate per annum, plus (d) aggregate value of the Consolidated Group Pro Rata
Share of Real Estate acquired by an Investment Affiliate, determined by the
Acquisition Property Valuation, plus (e) the lower of cost or market value
of all Unimproved Land of the Consolidated Group Pro Rata Share of
Investment Affiliates, plus (f) the Consolidated Group Share of the book
value of notes, mortgages, stock holdings, non-apartment properties and
evidences of indebtedness held by Investment Affiliates.
"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 or indirectly, by such Person or one or more Wholly
Owned Subsidiaries of such Person, or by such Person and one or more Wholly
Owned Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting power
of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
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2.1. THE FACILITY.
2.1.1 DESCRIPTION OF FACILITY. Each Lender severally agrees to
make a single Loan to the Borrower in accordance with Section 2.2.
2.1.2 AMOUNT OF TERM LOAN. In no event may the Aggregate
Outstanding Credit Exposure exceed the Aggregate Commitment. At any time on
or before eighteen months from the date hereof provided no Default or
Unmatured Default exists, Borrower may increase the amount of the Term Loan
to up to $125,000,000 by the addition of a new Lender or the increase of
the Commitment of an existing Lender, pursuant to an Amendment Regarding
Increase in the form of Exhibit I. In such event, the amount of such
increase shall be disbursed in a single disbursement. If there are any
outstanding Eurodollar Advances at the time of the increase, the Borrower
shall pay directly to each Lender any breakage associated with reallocating
outstandings so that all Lenders have their new Pro Rata Share of all
outstanding Advances. Each Lender shall be obligated to ▇▇▇▇ Borrower
directly for such breakage.
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2.1.3 AVAILABILITY OF FACILITY. Subject to the terms of this
Agreement, the facility is available from the date hereof to the date which
is fifteen days following the date hereof at which time the Commitments to
lend hereunder shall expire if the Term Loan has not been funded by such
date.
2.1.4 REPAYMENT OF FACILITY. The Aggregate Outstanding Credit
Exposure and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date.
2.2. DISBURSEMENT.
2.2.1 DISBURSEMENT OF TERM LOAN. The disbursement of the Term
Loan hereunder shall consist of Loans made from all Lenders ratably in
proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. The full amount of the Term Loan shall be disbursed
in a single disbursement. Notwithstanding the foregoing, if the amount of
the Term Loan is increased pursuant to Section 2.1.2. the amount of such
increase shall be disbursed solely by the existing or new Lender which has
agreed to fund such increased amount.
2.2.2 TYPES OF ADVANCES. The Advances may be Floating Rate
Advances or Eurodollar Advances, or a combination thereof, selected by the
Borrower in accordance with Section 2.2.3.
2.2.3 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR
ADVANCES. The Borrower shall select the Type of Advance and, in the case of
each Eurodollar Advance, the Eurodollar Interest Period applicable thereto,
from time to time. The Borrower shall give the Agent irrevocable notice (a
"Borrowing Notice") not later than 8:00 a.m. (California time) at least one
Business Day before the Borrowing Date for the Term Loan and at least three
Business Days before the Borrowing Date for the Term Loan if at the time of
disbursement it is to be composed of one or more Eurodollar Advances. A
Borrowing Notice shall specify:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest
Period applicable thereto (which may not end after the Facility
Termination Date).
2.2.4 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES.
Floating Rate Advances shall continue as Floating Rate Advances unless and
until such Floating Rate Advances are either converted into Eurodollar
Advances in accordance with this Section 2.2.4 or are repaid in accordance
with Section 2.7. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Eurodollar Interest Period
therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance
is or was repaid in accordance with Section 2.8 or (y) the Borrower shall
have given the Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Eurodollar Interest Period, such
Eurodollar Advance continue as a Eurodollar Advance for the same or another
Eurodollar 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 a
Floating Rate Advance into a Eurodollar Advance. The Borrower shall give
the Agent irrevocable notice (a "Conversion/Continuation Notice") of each
conversion of a Floating Rate Advance into a Eurodollar Advance, or
continuation of a Eurodollar Advance, not later than 8:00 a.m. (California
time) at least three Business Days prior to the date of the requested
conversion or continuation, specifying:
17
(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) in the case of a conversion to or continuation of a
Eurodollar Advance, the duration of the Eurodollar Interest Period
applicable thereto.
2.3. MAXIMUM NUMBER OF EURODOLLAR ADVANCES. There shall be no more
than five (5) Eurodollar Advances outstanding at any time.
2.4. METHOD OF BORROWING. Not later than 10:00 a.m. (San Francisco
time) on the Borrowing Date for the Term Loan, each Lender shall make
available its Loan or Loans in funds immediately available in San Francisco
to the Agent at its address specified pursuant to Article XIII. The Agent
will make the funds so received from the Lenders available to the Borrower
at the Agent's aforesaid address.
2.5. RESERVED.
2.6. RESERVED.
2.7. RESERVED.
2.8. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $1,000,000 or any integral multiple of
$100,000 in excess thereof, any portion of the outstanding Floating Rate
Advances upon prior notice to the Agent by 9:00 a.m. (California time) on
the date of repayment. The Borrower may from time to time pay, subject to
the payment of any funding indemnification amounts required by Section 3.4
but without penalty or premium, all outstanding Eurodollar Advances or, in
a minimum aggregate amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar
Advances upon three Business Days' prior notice to the Agent. Amounts
repaid can not be reborrowed.
2.9. CHANGES IN INTEREST RATE. ETC. Each Floating Rate 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
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.2.4
to but excluding the date it becomes due or is converted into a Eurodollar
Advance pursuant to Section 2.2.4 hereof, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on that portion
of any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Fixed Rate
Advance shall bear interest on the outstanding principal amount thereof
from and including the first day of the Interest Period applicable thereto
to (but not including) the last day of such Interest Period at the interest
rate determined as applicable to such Fixed Rate Advance. No Interest
Period may end after the scheduled Facility Termination Date.
2.10. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in Section 2.2.3, Section 2.2.4 or 2.8, during the
continuance of a Default or Unmatured Default the Required Lenders may, at
their option, by notice to the Borrower, declare that no Advance may be
converted into or continued as a Eurodollar Advance. During the continuance
of a Default the Required Lenders may, at their option, by notice to the
Borrower, declare that (i) each Fixed Rate Advance shall bear interest for
the remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 2% per annum, and (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate otherwise applicable to the Floating Rate Advance plus 2% per
annum provided that during the continuance of a Default under Section 7.6
or 7.7, the interest rates set forth in clauses (i) and (ii) above shall be
applicable to all Credit Extensions without any election or action on the
part of the Agent or any Lender.
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2.11. METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified
in writing by the Agent to the Borrower, by 10:00 a.m. (California time) on
the date when due and shall (except for the effects on allocation of
payments of there being a Defaulting Lender) be applied ratably by the
Agent among the Lenders. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending Installation specified
in a notice received by the Agent from such Lender. If a payment of
principal received by Agent by 10:00 a.m. (California time) on a Business
Day is not paid to the Lenders by close of business on the same day, Agent
shall pay interest on such principal amount at the Federal Funds Effective
Rate. The Agent is hereby authorized to initiate a charge against an
account of the Borrower for each payment of principal, interest, and fees
as it becomes due hereunder.
2.12. NOTES; EVIDENCE OF INDEBTEDNESS.
(i) Each Lender's Loans shall be evidenced by Notes
substantially in the form of Exhibit E. Each Lender shall record on
its books and records or on a schedule to its Notes (a) the amount of
each Loan made hereunder, the Type thereof and the Interest Period
with respect thereto and (b) all payments on account thereof.
(ii) The Agent shall record on its books and records (a) the
amount of each Loan made hereunder, the Type thereof and the Interest
Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (d) the amount of any sum
received by the Agent hereunder from the Borrower and each Lender's
share thereof.
(iii) The entries maintained in each Lender's and the Agent's
books and records pursuant to paragraphs (i) and (ii) above shall be
prima facie evidence of the existence and amounts of the Obligations
therein recorded; provided, however, that the failure of the Agent or
any Lender to make any such entries or any error therein shall not in
any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
2.13. FUNDS TRANSFER DISBURSEMENTS AND TELEPHONIC NOTICES. Borrower
hereby authorizes Agent to disburse the proceeds of the Term Loan made by
Lenders pursuant to the Loan Documents as requested by an authorized
representative of the Borrower to any of the accounts designated in Exhibit
D. Borrower agrees to be bound by any transfer request: (i) authorized or
transmitted by Borrower; or, (ii) made in Borrower's name and accepted by
Agent in good faith and in compliance with these transfer instructions,
even if not properly authorized by Borrower. Borrower further agrees and
acknowledges that Agent may rely solely on any bank routing number or
identifying bank account number or name provided by Borrower to effect a
wire or funds transfer even if the information provided by Borrower
identifies a different bank or account holder than named by the Borrower.
Agent is not obligated or required in any way to take any actions to detect
errors in information provided by Borrower. If Agent takes any actions in
an attempt to detect errors in the transmission or content of transfer or
requests or takes any actions in an attempt to detect unauthorized funds
transfer requests, Borrower agrees that no matter how many times Lender
takes these actions Agent will not in any situation be liable for failing
to take or correctly perform these actions in the future and such actions
shall not become any part of the transfer disbursement procedures
authorized under this provision, the Loan Documents, or any agreement
between Agent and Borrower. Borrower agrees to notify Agent of any errors
in the transfer of any funds or of any unauthorized or improperly
authorized transfer requests within 14 days after Agent confirmation to
Borrower of such transfer.
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Agent will, in its sole discretion, determine the funds transfer
system and the means by which each transfer will be made. Agent may delay
or refuse to accept a funds transfer request if the transfer would: (i)
violate the terms of this authorization (ii) require use of a bank
unacceptable to Agent or prohibited by government authority; (iii) cause
Agent to violate any Federal Reserve or other regulatory risk control
program or guideline, or (iii) otherwise cause Agent to violate
any applicable law or regulation.
Agent shall not be liable to Borrower or any other parties for (i)
errors, acts or failures to act of others, including other entities, banks,
communications carriers or clearinghouses, through which Borrower's
transfer may be made or information received or transmitted, and no such
entity shall be deemed an agent of the Agent, (ii) any loss, liability or
delay caused by fires, earthquakes, wars, civil disturbances, power surges
or failures, acts of government, labor disputes, failures in communications
networks, legal constraints or other events beyond Agent's control, or
(iii) any special, consequential, indirect or punitive damages, whether or
not (a) any claim for these damages is based on tort or contract or (b)
Agent or Borrower knew or should have know the likelihood of these damages
in any situation. Agent makes no representations or warranties other than
those expressly made in this Agreement.
The Borrower hereby authorizes the Lenders and the Agent to extend,
convert or continue Advances, effect selections of Types of Advances, based
on telephonic notices made by any person or persons the Agent or any Lender
in good faith believes to be acting on behalf of the Borrower, it being
understood that the foregoing authorization is specifically intended to
allow Borrowing Notices and Conversion/Continuation Notices to be given
telephonically. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken
by the Agent and the Lenders, the records of the Agent and the Lenders
shall govern absent manifest error.
2.14. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest
accrued on the Term Loan shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on
which a prepayment is made, whether due to acceleration or otherwise, and
at maturity. Interest and all fees hereunder 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 (California time) at the place of
payment. 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.
2.15. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof (but no later than
the close of the business day on which received), the Agent will notify
each Lender of the contents of each Borrowing Notice, Conversion/Con-
tinuation Notice, and repayment notice received by it hereunder. The Agent
will notify each Lender of the interest rate applicable to each Fixed Rate
Advance promptly upon determination of such interest rate and will give
each Lender prompt notice of each change in the Alternate Base Rate.
2.16. 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 Loans, and any Notes issued hereunder
shall be deemed held by each Lender for the benefit of any such Lending
Installation. Each Lender may, by written notice to the Agent and the
Borrower in accordance with Article XIII, designate replacement or
additional Lending Installations through which Loans will be made by it and
for whose account Loan payments are to be made are to be made.
20
2.17. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which
it is scheduled to make payment to the 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 Agent for the account of the Lenders,
that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to,
make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower, as the case
may be, has not in fact made such payment to the Agent, the recipient of
such payment shall, on demand by the Agent, repay to the 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 Agent until the date the Agent recovers such amount at a rate per
annum equal to (x) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day for the first three days and, thereafter, the
interest rate applicable to the relevant Loan or (y) in the case of payment
by the Borrower, the interest rate applicable to the relevant Loan.
2.18. EXTENSION OF FACILITY TERMINATION DATE. The Borrower may
request a one year extension of the Facility Termination Date by submitting
a request for an extension to the Agent (an "Extension Request") no less
than 90 days prior to the Facility Termination Date. Not later than
forty-five (45) days after Borrower requests the extension, Agent shall
notify Borrower as to what the Applicable Cap Rate shall be during the
extension period. Borrower may elect to withdraw its election to extend at
any time during the fifteen (15) day period after receipt of such
notification. It shall be a condition precedent to any extension of the
Facility Termination Date pursuant hereto that (i) the Borrower shall have
paid, on or before the original Facility Termination Date an extension fee
to the Agent for the account of each Lender equal to .15% of the Aggregate
Outstanding Credit Exposure at the time of such extension, (ii) there are
no Defaults, and (iii) each of the representations and warranties set forth
in Article V is true and correct in all material respects.
2.19. RESERVED.
2.20. RESERVED.
ARTICLE III
YIELD PROTECTION; TAXES
-----------------------
3.1. YIELD PROTECTION. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi governmental rule,
regulation, policy, guideline or directive (whether or not having the force
of law), or any change in the interpretation or administration thereof by
any governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender or applicable Lending Installation
with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of taxation of
payments (other than with respect to Excluded Taxes) to any Lender in
respect of its Fixed Rate Loans, 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 Eurodollar Advances), or
21
(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 its Fixed Rate Loans,
or reduces any amount receivable by any Lender or any applicable
Lending Installation in connection with its Fixed Rate Loans, or
requires any Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of Fixed Rate
Loans, held or interest received by it, by an amount deemed material
by such Lender, and the result of any of the foregoing is to increase
the cost to such Lender or applicable Lending Installation, of making
or maintaining its Fixed Rate Loans or to reduce the return received
by such Lender or applicable Lending Installation in connection with
such Fixed Rate Loans, then, within 15 days of demand by such Lender
(which demand shall be accompanied by a statement of the basis for,
and calculation in reasonable detail of, the amount being demanded),
the Borrower shall pay such Lender such additional amount or amounts
as will compensate such Lender for such increased cost or reduction
in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If any Lender in the
Loan determines that compliance with any law or regulation or with any
guideline or request from any central bank or other governmental agency
(whether or not having the force of law) affects or would affect the amount
of capital required or expected to be maintained by such Lender, or any
corporation controlling such Lender, as a consequence of, or with reference
to, such Lender's, or such corporation's commitments or its making or
maintaining advances, and such compliance reduces the rate of return which
such Lender or such corporation controlling such Lender could have achieved
but for such compliance (taking into account the policies of such Lender or
corporation with regard to capital), then Borrower shall, from time to
time, within thirty (30) calendar days after written demand by such Lender
(which demand shall be accompanied by a statement of the basis for, and
calculation in reasonable detail of, the amount being demanded), pay to
such Lender additional amounts sufficient to compensate such Lender or such
corporation controlling such Lender to the extent that such Lender
determines such increase in capital is allocable to such Lender's
obligations hereunder. A certificate as to such amounts, submitted to
Borrower by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If (x) any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether
or not having the force of law, or (y) if the Required Lenders determine
that (i) deposits of a type and maturity appropriate to match fund
Eurodollar Advances are not available or (ii) the interest rate applicable
to Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Agent shall, in the ease of
clause (x) above, suspend the availability of Eurodollar Advances and
require any affected Eurodollar Advances to be repaid or converted to
Floating Rate Advances, subject to the payment of any funding
indemnification amounts required by Section 3.4, and in the case of clause
(y) above, suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts
required pursuant by Section 3.4.
3.4. FUNDING INDEMNIFICATION. If any payment of a Fixed Rate 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
Fixed Rate Advance is not made on the date specified by the Borrower for
any reason other than default by the applicable Lender, the Borrower will
indemnify each Lender 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 such Fixed Rate Advance.
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3.5. TAXES.
(i) All payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any Note shall be made free
and clear of and without deduction for any and all Taxes. If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender, or the Agent, (a)
the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to
additional sums payable under this Section 3.5) such Lender, or the
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (b) the
Borrower shall make such deductions, (c) the Borrower shall pay the
full amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall furnish to the Agent the
original copy of a receipt evidencing payment thereof within 30 days
after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any Note
other than Excluded Taxes ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent, and
each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Agent, or such Lender as
a result of its Commitment, any Loans made by it hereunder, or
otherwise in connection with its participation in this Agreement and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent,
or such Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after
the date of this Agreement, (i) deliver to the Agent two duly
completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, and (ii)
deliver to the Agent a United States Internal Revenue Form W-8 or
W-9, as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S.
Lender further undertakes to deliver to each of the Borrower and the
Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or
becomes obsolete, and (y) after the occurrence of any event requiring
a change in the most recent forms so delivered by it, such additional
forms or amendments thereto as may be reasonably requested by the
Borrower or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to
receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and
delivering any such form or amendment with respect to it and such
Lender advises the Borrower and the Agent that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax.
23
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under this
Section 3.5 with respect to Taxes imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject
to Taxes because of its failure to deliver a form required under
clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a copy
to the Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the Agent did
not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the Agent of
a change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender shall
indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Agent under this subsection,
together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Lender shall take all reasonable actions,
including designating an alternate Lending Installation with respect to its
Eurodollar Loans, to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such action is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender to the Borrower (with a
copy to the Agent) as to the amount due, if any, under Section 3.1, 3.2,
3.4 or 3.5. Such written statement shall set forth in reasonable detail the
basis for, and 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 Eurodollar Loan shall be calculated as though
each Lender funded its Eurodollar Loan through the purchase of a deposit of
the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar 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 of any Lender shall be payable on demand
after receipt by the Borrower of such written statement. All claims for
additional costs under this Article 3 shall be provided to Borrower within
six months after the applicable Lender has knowledge of the events giving
rise to such additional cost. The obligations of the Borrower under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement.
24
3.7. REPLACEMENT OF LENDER. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if
any Lender's obligation to make or continue, or to convert Floating Rate
Advances into, Eurocurrency Advances shall be suspended pursuant to Section
3.3 (any Lender so affected an "Affected Lender"), the Borrower may elect,
if such amounts continue to be charged or such suspension is still
effective, to replace such Affected Lender as a Lender party to this
Agreement, provided that no Default or Unmatured Default shall have
occurred and be continuing at the time of such replacement, and provided
further that, concurrently with such replacement, (i) another bank or other
entity which is reasonably satisfactory to the Borrower and the Agent shall
agree, as of such date, to purchase for cash the Advances and other
Obligations due to the Affected Lender pursuant to an assignment
substantially in the form of Exhibit C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements
of Section 12.3 applicable to assignments, and (ii) the Borrower shall pay
to such Affected Lender in same day funds on the day of such replacement
(A) all interest, fees and other amounts then accrued but unpaid to such
Affected Lender by the Borrower hereunder to and including the date of
termination, including without limitation payments due to such Affected
Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal to
the payment which would have been due to such Lender on the day of such
replacement under Section 3.4 had the Loans of such Affected Lender been
prepaid on such date rather than sold to the replacement Lender.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1. DISBURSEMENT OF TERM LOAN. The Lenders shall not be required to
make the Term Loan unless the Borrower has furnished to the Agent with
sufficient copies for the Lenders:
4.1.1 CERTIFICATES OF LIMITED PARTNERSHIP/ORGANIZATIONAL
DOCUMENTS. A copy of the Certificate of Limited Partnership for the
Borrower, a copy of the declaration of trust of General Partner and a copy
of the organizational/formation documents for each other Guarantor, each
certified as of a recent date by the appropriate Secretary of State or
equivalent state official.
4.1.2 AGREEMENTS OF LIMITED PARTNERSHIP/BYLAWS. A copy of the
Agreement of Limited Partnership for the Borrower, a copy of the bylaws of
the General Partner, and a copy of the bylaws of each other Guarantor
including all amendments thereto, each certified by the Secretary or an
Assistant Secretary of the General Partner or such Guarantor, as
appropriate, as being in full force and effect on the Agreement Execution
Date.
4.1.3 GOOD STANDING CERTIFICATES. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where the Borrower and the Guarantors are organized, dated as of a
recent date, showing the good standing or partnership qualification (if
issued) of(i) Borrower and (ii) each Guarantor.
4.1.4 FOREIGN QUALIFICATION CERTIFICATES. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
state where the Borrower and General Partner maintain their principal place
of business, dated as of a recent date, showing the qualification (to the
extent such concept applies to such Person) to transact business in such
state as a foreign limited partnership or foreign corporation, as the case
may be, for (i) Borrower and (ii) General Partner.
25
4.1.5 RESOLUTIONS. A copy of a resolution or resolutions
adopted by the Board of Directors of the General Partner and by the Board
of Directors of the other Guarantors, certified by the Secretary or an
Assistant Secretary of the General Partner or such Guarantor, as
appropriate, as being in full force and effect on the date hereof,
authorizing the Advances provided for herein and the execution, delivery
and performance of the Loan Documents by the General Partner to be executed
and delivered by it hereunder on behalf of itself and Borrower and by such
Guarantor with respect to the Loan Documents to be executed and delivered
by it hereunder.
4.1.6 INCUMBENCY CERTIFICATES. A certificate, signed by the
Secretary or an Assistant Secretary of the General Partner and each
Guarantor and dated the date hereof, as to the incumbency, and containing
the specimen signature or signatures, of the Persons authorized to execute
and deliver the Loan Documents to be executed and delivered by it and
Borrower, the General Partner and each other Guarantor.
4.1.7 LOAN DOCUMENTS. Originals of the Loan Documents (in such
quantities as the Lenders may reasonably request), duly executed by
authorized officers of the appropriate entity.
4.1.8 OPINION OF COUNSEL. A written opinion, dated the date
hereof, from outside counsel for the Borrower, General Partner and the
other Guarantors which counsel is reasonably satisfactory to Agent,
substantially in the form attached hereto as Exhibit A but containing
customary assumptions, limitations and qualifications.
4.1.9 Financial and Related Information. The following
information:
(i) A certificate, signed by an officer of the Borrower,
stating that on the date hereof no Default or Unmatured Default has
occurred and is continuing and that all representations and
warranties of the Borrower and General Partner contained herein are
true and correct as of the date hereof as and to the extent set forth
herein including a proforma compliance certificate showing
calculations necessary to show compliance as of September 30, 2004
with Sections 6.10, 6.14, 6.25 and 6.26 of this Agreement;
(ii) The most recent financial statements of the Consolidated
Group and a certificate from an Authorized Officer of the Borrower
that no change in the Consolidated Group's financial condition that
would have a Material Adverse Effect has occurred since
December 31, 2003;
(iii) Written money transfer instructions, in substantially the
form of Exhibit D hereto, addressed to the Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
4.1.10 OTHER EVIDENCE AS ANY LENDER MAY REQUIRE. Such other
evidence as any Lender may reasonably request to establish the consummation
of the transactions contemplated hereby, the taking of all necessary
actions in any proceedings in connection herewith and compliance with the
conditions set forth in this Agreement.
When all such conditions have been fulfilled (or, in the Lenders'
sole discretion, waived by Lenders), the Lenders shall confirm in writing
to Borrower that the initial Advance is then available to Borrower
hereunder.
4.2. EACH CREDIT EXTENSION. No additional disbursement in connection
with an increase of the Term Loan shall be made unless on the applicable
Credit Extension Date:
(i) There exists no Default or Unmatured Default.
26
(ii) The representations and warranties contained in Article V
(other than Section 5.20) are true and correct in all material
respects as of such Credit Extension Date 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
have been true and correct on and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Borrower's request for such disbursement shall constitute a
representation and warranty by the Borrower that the conditions contained
in Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Borrower and the General Partner represents and warrants
to the Lenders that:
5.1. EXISTENCE AND STANDING. Each of the Borrower, the General
Partner and their Subsidiaries is a corporation, partnership, trust or
limited liability company, as appropriate, duly and properly incorporated
or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its
jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its
business is conducted except where the failure to do so would not result in
a Material Adverse Effect.
5.2. AUTHORIZATION AND VALIDITY. Each of the Borrower and the
Guarantors has the power and authority and legal right to execute and
deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by the Borrower and each
Guarantor of the Loan Documents to which it is a party and the performance
of its obligations thereunder have been duly authorized by proper
partnership, trust or corporate proceedings, and the Loan Documents to
which the Borrower and each Guarantor is a party constitute legal, valid
and binding obligations of the Borrower and such Guarantor enforceable
against the Borrower and such Guarantor in accordance with their respective
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.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower or the Guarantors of the Loan Documents to which
they are a party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate (i)
any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower, any Guarantor or any of their Subsidiaries
or (ii) the Borrower's, or any Guarantor's or any such Subsidiary's
articles or certificate of incorporation, partnership agreement,
certificate of partnership, articles or certificate of organization, by
laws, or operating or other management agreement, as the case may be, or
(iii) the provisions of any indenture, instrument or agreement to which the
Borrower, any Guarantor or any of their Subsidiaries 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, or require, the creation or
imposition of any Lien in, of or on the Property of the Borrower, any
Guarantor or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which
27
has not been obtained by the Borrower, any Guarantor or any of their
Subsidiaries, is required to be obtained by the Borrower, any Guarantor or
any of their Subsidiaries in connection with the execution and delivery of
the Loan Documents, the borrowings under this Agreement, the payment and
performance by the Borrower of the Obligations or by any Guarantor under
the Guaranty or the legality, validity, binding effect or enforceability of
any of the Loan Documents.
5.4. FINANCIAL STATEMENTS. The December 31, 2003 consolidated
financial statements of the General Partner and its Subsidiaries (including
the Borrower and the other Guarantors) heretofore delivered to the Lenders
were prepared in accordance with generally accepted accounting principles
in effect on the date such statements were prepared and fairly present the
consolidated financial condition and operations of the General Partner and
its Subsidiaries (including the Borrower and the other Guarantors) at such
date and the consolidated results of their operations for the period then
ended.
5.5. MATERIAL ADVERSE CHANGE. Since December 31, 2003 there has been
no change in the business. Property, prospects, condition (financial or
otherwise) or results of operations of the General Partner and its
Subsidiaries (including the Borrower and the other Guarantors) which could
reasonably be expected to have a Material Adverse Effect.
5.6. TAXES. The General Partner and its Subsidiaries (including the
Borrower and the other Guarantors) 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 assessment
received by the General Partner or any of such Subsidiaries, except where
failure to do so would not reasonably be expected to have a Material
Adverse Effect or except for such taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no Lien
exists (other than as permitted by Section 6.15). 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 General Partner and its
Subsidiaries in respect of any taxes or other governmental charges are good
faith estimates of amounts judged to be adequate.
5.7. LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 3, There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Credit
Extensions. Other than any liability incident to any litigation,
arbitration or proceeding which (i) could not reasonably be expected to
have a Material Adverse Effect or (ii) is set forth on Schedule 3, the
Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8. SUBSIDIARIES. Schedule 1 contains an accurate list of all
Subsidiaries of the General Partner and the Borrower as of the date of this
Agreement, setting forth their respective jurisdictions of organization and
the percentage of their respective capital stock or other ownership
interests owned by the General Partner and the Borrower or other
Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent
such concepts are relevant with respect to such ownership interests) duly
authorized and issued and are fully paid and non assessable.
5.9. INTENTIONALLY DELETED.
28
5.10. ACCURACY OF INFORMATION. No information, exhibit or report
furnished by, or on behalf of, the General Partner, the Borrower or any
Subsidiary to the Agent or to any Lender in connection with the negotiation
of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not materially
misleading.
5.11. REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and
its Subsidiaries which are subject to any limitation on sale, pledge, or
other restriction hereunder.
5.12. MATERIAL AGREEMENTS. None of the General Partner, the Borrower
or any Subsidiary is a party to any agreement or instrument or subject to
any charter or other restriction which could reasonably be expected to have
a Material Adverse Effect. Neither the General Partner, the Borrower nor
any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement to which it is a party, which default could reasonably be
expected to have a Material Adverse Effect.
5.13. COMPLIANCE WITH LAWS. The General Partner and its Subsidiaries
(including the Borrower and the Guarantors) have complied 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 the
ownership of their respective Property except for any failure to comply
with any of the foregoing which could not reasonably be expected to have a
Material Adverse Effect.
5.14. OWNERSHIP OF PROPERTIES. Except as set forth on Schedule 2, on
the date of this Agreement, the General Partner, the Borrower and their
Subsidiaries will have good title sufficient for the intended use, free of
all Liens other than those permitted by Section 6.15, to all of the
Property and assets reflected in the General Partner's most recent
consolidated financial statements provided to the Agent as owned by the
General Partner and its Subsidiaries except for property disposed of in the
ordinary course of business or as otherwise permitted by this Agreement.
5.15. PLAN ASSETS; PROHIBITED TRANSACTIONS. Neither Borrower, any
Subsidiary nor any member of the Controlled Group maintains any Plan. The
Borrower is not an entity deemed to hold "plan assets" within the meaning
of 29 C.F.R. Subsection 2510.3-101 of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan
(within the meaning of Section 4975 of the Code), and neither the execution
of this Agreement nor the making of Credit Extensions hereunder gives rise
to a prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
5.16. ENVIRONMENTAL MATTERS. In the ordinary course of its business,
the officers of the Borrower consider the effect of Environmental Laws on
the business of the Borrower and its Subsidiaries, in the course of which
they identify and evaluate potential risks and liabilities accruing to the
Borrower due to Environmental Laws. On the basis of this consideration, the
Borrower has concluded that Environmental Laws would not reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary has received any written notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond
to a release of any toxic or hazardous waste or substance into the
environment, which non compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
29
5.17. INVESTMENT COMPANY ACT. Neither the 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.
5.18. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the 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.
5.19. INSURANCE. The Borrower maintains insurance complying with the
requirements of Section 6.6 hereof.
5.20. UNENCUMBERED ASSETS. Attached to the most recent compliance
certificate is a complete and accurate description of Unencumbered Assets
as of the date of such certificate, 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 as would not materially adversely affect the use and
operation of such Property for its intended use or its marketability or
value and except to the extent disclosed in writing to the Lenders and
approved by the Required Lenders (which approval shall not be unreasonably
withheld):
5.20.1 No portion of any improvement on the Unencumbered Asset
is located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the Flood
Disaster Protection Act of 1973, as amended, or any successor law, or, if
located within any such area. Borrower has obtained and will maintain the
insurance prescribed in Section 6.6 hereof.
5.20.2 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 except to the extent allowed by applicable laws), building
codes, land use and Environmental Laws, and other similar laws ("Applicable
Laws").
5.20.3 The Unencumbered Asset is or, in the case of Development
Properties without unusual cost or expense can be, 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.
5.20.4 All public roads and streets necessary for service of
and access to the Unencumbered Asset for the current or contemplated use
thereof have been or, in the case of Development Properties without unusual
cost or expense can be, completed, are serviceable and all-weather and are
physically and legally open for use by the public.
5.20.5 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.
30
5.20.6 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 other than damage which has been
covered by insurance and for which cash has been set aside to cover any
deductible or self insurance portion, is in good repair and there is no
material deferred maintenance other than ordinary wear and tear or for
which adequate reserves exist. The Unencumbered Asset is free from material
damage caused by fire or other casualty. There is no pending or, to the
actual knowledge of Borrower threatened condemnation proceedings affecting
the Unencumbered Asset, or any material part thereof.
5.20.7 Except for matters insured by title insurance, 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 benefiting
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 benefiting the Unencumbered Asset other than encroachments
that do not materially adversely affect the use or occupancy of the
Unencumbered Asset. All amenities, access routes or other items that
materially benefit the Unencumbered Asset are under direct control of
Borrower, constitute permanent easements that benefit all or part of the
Unencumbered Asset or are public property, and the Unencumbered Asset, by
virtue of such easements or otherwise, is contiguous to a physically open,
dedicated all weather public street, and has the necessary permits for
ingress and egress.
5.20.8 There are no material delinquent taxes, ground rents,
water charges, sewer rents, assessments, insurance premiums, leasehold
payments, or other outstanding charges affecting the Unencumbered Asset
except to the extent such items are being contested in good faith and as to
which adequate reserves have been provided.
A breach of any of the representations and warranties contained in
this Section 5.21 with respect to a Property shall disqualify such Property
from being an Unencumbered Asset for so long as such breach continues
(unless otherwise approved by the Required Lenders) but shall not
constitute a Default (unless the elimination of such Property as an
Unencumbered Asset results in a Default under one of the other provisions
of this Agreement).
5.21. STATUS. General Partner is a corporation listed and in good
standing on the New York Stock Exchange ("NYSE") and is currently qualified
as a real estate investment trust under the Code.
5.22. REPORTABLE TRANSACTION. Neither Borrower nor any Guarantor
intends to treat the Advances and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the Borrower or any Guarantor determines to take
any action inconsistent with such intention. Borrower will promptly notify
the Agent thereof. If Borrower so notifies Agent, Borrower acknowledges
that Agent may treat the Term Loan as part of a transaction that is subject
to Treasury Regulation Section 301.6112-1, and Agent will maintain the
lists and other records, including the identity of the applicable party to
the Term Loan as required by such Treasury Regulation.
31
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower and the General Partner each
will maintain, for itself and each Subsidiary, a system of accounting
established and administered in accordance with Agreement Accounting
Principles, and furnish to the Agent (and Agent shall thereafter promptly
deliver to the Lenders):
(i) Within 90 days after the close of each of its fiscal
years, an unqualified (except for qualifications relating to changes
in accounting principles or practices reflecting changes in generally
accepted accounting principles and required or approved by the
General Partner's independent certified public accountants) audit
report certified by independent certified public accountants
acceptable to the Agent (which shall include KPMG), prepared in
accordance with Agreement Accounting Principles on a consolidated
basis for the Consolidated Group, including balance sheets as of the
end of such period, related profit and loss and reconciliation of
surplus statements, and a statement of cash flows.
(ii) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years, for the Consolidated
Group, consolidated unaudited balance sheets as at the close of each
such period and consolidated profit and loss and reconciliation of
surplus statements and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer or principal accounting
officer and, upon request by the Agent, within 45 days after the
close of any quarterly period. Borrower shall provide to Agent a
listing of capital expenditures, 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 Net Operating Income, occupancy
rates, square footage, property type and date acquired or built, and
such other information as may be reasonably requested by Agent to
evaluate the quarterly compliance certificate delivered as provided
below, and any additional information regarding Qualifying Investment
Affiliates as Agent may reasonably request.
(iii) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in substantially
the form of Exhibit B signed by its chief financial officer or
principal accounting officer showing the calculations necessary to
determine compliance with this Agreement and stating that no Default
or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 days after
the Borrower or the General Partner knows that any Reportable Event
has occurred with respect to any Plan, a statement, signed by the
chief financial officer of the Borrower, describing said Reportable
Event and the action which the Borrower or the General Partner
proposes to take with respect thereto.
32
(v) As soon as possible and in any event within 10 days after
receipt by the Borrower or the General Partner, a copy of (a) any
written notice or claim to the effect that the Borrower or the
General Partner or any of their Subsidiaries is or may be liable to
any Person as a result of the release by the Borrower, the General
Partner, any of their Subsidiaries, or any other Person of any toxic
or hazardous waste or substance into the environment, and (b)
any written notice alleging any violation of any federal, state or
local environmental, health or safety law or regulation by the
Borrower, the General Partner or any of their Subsidiaries, which,
in either case of (a) or (b), could reasonably be expected to have a
Material Adverse Effect.
(vi) Promptly upon the furnishing thereof to the shareholders
of the General Partner, copies of all financial statements, material
reports and proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all
registration statements and Form lOKs, Form lOQs, proxy statements,
and upon request of the Agent any other reports which the General
Partner or the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(viii) Such other information (including non financial
information) as the Agent or any Lender may from time to time
reasonably request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for general
corporate purposes, working capital and acquisition, development and
operation of real estate. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or carry
any "margin stock" (as defined in Regulation U).
6.3. NOTICE OF DEFAULT. Each of the Borrower and the General Partner
will, and will cause each Subsidiary to, give prompt notice in writing to
the Lenders of the occurrence of any Default or Unmatured Default (and each
such notice shall state that it is a notice of default) and of any other
development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect.
6.4. EXISTENCE AND CONDUCT OF OPERATIONS. Except as permitted
herein, the Borrower and General Partner will, and will cause each
Subsidiary to, maintain and preserve its existence and all rights,
privileges and franchises now enjoyed and necessary for the operation of
its business, including remaining in good standing in each jurisdiction in
which business is currently operated except where the failure to do so
would not result in a Material Adverse Effect. Except as permitted herein,
the Borrower and the General Partner shall carry on and conduct their
respective businesses in substantially the same manner and in substantially
the same fields of enterprise as presently conducted. The Borrower and
General Partner will do, and (subject to Section 6.12) will cause each of
its Subsidiaries to do, all things necessary to remain duly incorporated
and/or duly qualified, validly existing and in good standing as a real
estate investment trust, corporation, general partnership, limited
liability company or limited partnership, as the case may be, in its
jurisdiction of incorporation/formation. The Borrower and General Partner
will cause each Person holding title to each of the Properties to maintain
all requisite authority to conduct its business in each jurisdiction in
which the Properties are located and, except where the failure to be so
qualified would not have a Material Adverse Effect, in each jurisdiction
required to carry on and conduct its businesses in substantially the same
manner as it is presently conducted, and, specifically, neither the
Borrower nor its Subsidiaries will undertake any business other than the
acquisition, development, ownership, management, operation and leasing of
multi-family housing properties and ancillary businesses specifically
related thereto except as permitted under Section 6.14 hereof.
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6.5. TAXES. Each of the Borrower and the General Partner will, and
will cause each Subsidiary to, timely file materially complete and correct
United States federal and applicable foreign, state and local tax returns
required by law and pay before delinquent due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside
in accordance with Agreement Accounting Principles.
6.6. INSURANCE. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts and covering such risks as
is consistent with sound business practice, including without limitation:
(i) property and casualty insurance (including coverage for flood and other
water damage for any Property located within a 100-year flood plain) in the
amount of the replacement cost of the improvements at the Properties
(subject to reasonable deductibles); (ii) loss of rental income insurance
in the amount not less than one year's gross revenues from the Unencumbered
Assets; and (iii) comprehensive general liability insurance in the amount
no less than $1,000,000 per occurrence, and the Borrower will furnish to
any Lender upon request by the Agent full information as to the insurance
carried.
6.7. COMPLIANCE WITH LAWS. Each of the Borrower and the General
Partner will, and will cause each Subsidiary to, comply in all material
respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws.
6.8. MAINTENANCE OF PROPERTIES. Each of the Borrower and the General
Partner will, and will cause each Subsidiary to, maintain, preserve,
protect and keep its Property in good repair, working order and condition
(ordinary wear and tear excepted), and make all necessary and proper
repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9. INSPECTION. Upon reasonable notice requesting the same (unless
a Default or Unmatured Default has occurred and is continuing) each of the
Borrower and the General Partner will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property (subject to the rights of tenants),
books and financial records of the Borrower, the General Partner and each
Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower, the General Partner and each Subsidiary,
and to discuss the affairs, finances and accounts of the Borrower, the
General Partner and each Subsidiary with, and to be advised as to the same
by, their respective officers at such reasonable times and intervals as the
Agent may reasonably request.
6.10. DIVIDENDS. The General Partner will not, nor will it permit any
Subsidiary (other than a Qualifying Investment Affiliate) to, declare or
pay any dividends or make any distributions on equity interests (other than
dividends payable in equity interests) or redeem, repurchase or otherwise
acquire or retire any of its equity interests at any time outstanding,
except that (i) any Subsidiary may declare and pay dividends to the
Borrower or the General Partner and (ii) provided there is no Default or
Unmatured Default then existing the General Partner may declare and pay
dividends to its shareholders provided that the aggregate amount of
dividends on account of any fiscal year is not in excess of 100% of its
Funds From Operations for such fiscal year. Notwithstanding the foregoing,
unless at the time of distribution there is a Monetary Default, the General
Partner shall be permitted at all times to distribute whatever amount is
necessary to maintain its tax status as a real estate investment trust.
34
6.11. MAINTENANCE OF STATUS. The General Partner 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.
6.12. MERGER. Neither the Borrower nor the General Partner will, nor
will they permit any Subsidiary (other than a Qualifying Investment
Affiliate) to, merge or consolidate with or into any other Person, except
that if no Default shall occur after giving effect to such merger, a
Subsidiary may merge into the Borrower or another Subsidiary, and Borrower
or General Partner may enter into a merger in which such entity is the
survivor.
6.13. SALE OF ASSETS. Neither the Borrower nor the General Partner
will, nor will they permit any Subsidiary (other than a Qualifying
Investment Affiliate) to, lease, sell or otherwise dispose of its Property
to any other Person, except leases, sales or other dispositions of its
Property that, together with all other Property previously leased, sold or
disposed of as permitted by this Section during the twelve month period
ending with the month in which any such lease, sale or other disposition
occurs, do not constitute a Substantial Portion. The foregoing restriction
does not apply to leases of apartment units, laundry facilities or other
leases in the ordinary course of Borrower's business.
6.14. INVESTMENTS. Neither the Borrower nor the General Partner will,
nor will they permit any Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and advances to, and other
Investments in, Subsidiaries), or commitments therefor, or to create any
Subsidiary or to become or remain a partner in any partnership or joint
venture, except:
(i) Cash Equivalent Investments.
(ii) Investments permitted under Section 6.4 hereof.
(iii) Stock holdings or other ownership holdings other than in
Subsidiaries not exceeding 5% of Total Asset Value.
(iv) Mortgages not exceeding 5% of Total Asset Value.
(v) Unimproved Land not exceeding 10% of Total Asset Value.
(vi) Non-apartment Properties not exceeding 5% of Total Asset
Value.
(vii) Development Properties not exceeding 20% of Total Asset
Value.
provided, however, that the aggregate of (iii) through (vii) above may not
exceed 30% of Total Asset Value.
6.15. LIENS. Neither the Borrower nor the General Partner will, nor
will they permit any Subsidiary to, create, incur, or suffer to exist any
Lien in, of or on the Property of the Borrower or any of its Subsidiaries,
except:
(i) Liens for taxes, assessments or governmental charges or
levies on its 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 in accordance with Agreement Accounting Principles
shall have been set aside on its books.
35
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
60 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 and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the
Borrower or its Subsidiaries.
(v) Liens 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.
6.16. PRE-ACQUISITION ENVIRONMENTAL INVESTIGATIONS. The Borrower will
obtain or cause to be prepared prior to the acquisition of each project
that it intends to acquire an environmental report pursuant to a standard
scope of work consistent with that used by other institutional buyers of
similar properties.
6.17. AFFILIATES. The Borrower will not, and will not permit any
Subsidiary 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 business and upon fair and reasonable terms no less favorable
to the Borrower or such Subsidiary than the Borrower or such Subsidiary
would obtain in a comparable arms length transaction.
6.18. NOTICE OF RATING CHANGE. The Borrower shall notify the Agent
promptly (but no later than five 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.
6.19. INTEREST RATE HEDGING. Neither the Borrower nor the General
Partner will enter into or remain liable upon, nor will it permit any
Subsidiary to enter into or remain liable upon, any Rate Management
Transaction unless such Rate Management Transaction was entered into by the
Borrower, General Partner or a Subsidiary in the ordinary course of its
business for the purpose of hedging interest rate risk to the Borrower or a
Subsidiary.
6.20. ENVIRONMENTAL MATTERS. The Borrower will, and will cause each
of its Subsidiaries to:
(i) be in material compliance with, and use its reasonable
efforts to ensure material compliance by all commercial 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 commercial 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, except to the
extent that (a) the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could
36
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;
(ii) conduct and complete, or will use its reasonable efforts
to cause its commercial 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 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;
and
(iii) defend, indemnify and hold harmless the 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, or the Properties for which the
Borrower or its Subsidiaries 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;
6.21. INTENTIONALLY OMITTED.
6.22. GENERAL PARTNER. The General Partner will not (i) own less than
75% of the partnership interests in Borrower, or (ii) permit any pledge of,
or other encumbrance on, or conversion to limited partnership interests of,
any of the general partnership interests in the Borrower.
6.23. INVESTMENT AFFILIATES. Neither the Borrower nor the General
Partner will, nor will they permit any Subsidiary to, permit the Value of
Investment Affiliates to exceed 50% of Total Asset Value.
6.24. FINANCIAL COVENANTS. As of the last day of each fiscal quarter:
6.24.1 TANGIBLE NET WORTH. The Borrower will have Tangible Net
Worth of not less than the sum of (a) $375,000,000 plus (b) an amount equal
to seventy-five percent (75%) of the net proceeds received by the Borrower
and/or the General Partner by reason of the issuance and sale of equity
interests from and after the date of this Agreement;
6.24.2 LEVERAGE. The Borrower will not permit the ratio of (a)
Consolidated Outstanding Indebtedness as of such date to (b) Total Asset
Value as of such date to exceed .60 to 1.0;
6.24.3 INTEREST COVERAGE. The Borrower will not permit the
ratio of (a) EBITDA of the Consolidated Group, plus (without duplication)
the Consolidated Group Pro Rata Share of EBITDA of each Investment
Affiliate for the four fiscal quarters then ended to (b) Consolidated
Interest Expense for the same period to be less than 2.00 to 1.00;
37
6.24.4 FIXED CHARGE COVERAGE. The Borrower will not permit the
ratio of (a) EBITDA of the Consolidated Group, plus (without duplication)
the Consolidated Group Pro Rata Share of EBITDA of each Investment
Affiliate for the four fiscal quarters then ended to (b) Fixed Charges for
the same period to be less than 1.60 to 1.0;
6.24.5 UNENCUMBERED ASSET COVERAGE. The Borrower will not
permit the ratio of (a) Unencumbered Asset Value as of such date to (b)
Unsecured Indebtedness of the Consolidated Group plus the Consolidated
Group Pro Rata Share of Unsecured Indebtedness of Investment Affiliates as
of such date to be less than 1.75 to 1.00;
6.24.6 UNENCUMBERED INTEREST COVERAGE. The Borrower will not
permit the ratio of (a) Unencumbered Net Operating Income for the four
fiscal quarters then ended to (b) Unsecured Interest Expense for the same
period to be less than 2.00 to 1.00;
6.24.7 SECURED DEBT RATIO. The Borrower will not permit the
ratio of (a) Consolidated Secured Indebtedness as of such date to (b) Total
Asset Value as of such date to be more than 0.50 to 1.00.
ARTICLE VII
DEFAULTS
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The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty (other than a representation or
warranty contained in Section 5.20) made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the Agent under
or in connection with this Agreement, any Credit Extension, 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.
7.2. Nonpayment of principal of any Loan when due, or nonpayment of
interest upon any Loan or of any commitment fee, within five days after the
same becomes due, or nonpayment of any other obligations under any of the
Loan Documents within five days after notice from Agent that the same is
due.
7.3. The breach by the Borrower or the General Partner of any of the
terms or provisions of Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.19,
6.23 or 6.24.
7.4. The breach by the Borrower or the General Partner (other than a
breach which constitutes a Default under another Section of this Article
VII) of any of the terms or provisions of this Agreement which is not
remedied within thirty days after written notice from the Agent or any
Lender, except that if such breach is curable, but is not susceptible of
being cured within thirty days, then such breach shall not constitute a
Default so long as Borrower commences cure within thirty days and
diligently continues to cure the breach thereafter and completes such cure
no later than ninety (90) days after notice of such breach.
7.5. Failure of the Borrower or any of its Subsidiaries or any
Guarantor to pay when due any Material Indebtedness; or the default by the
Borrower or any of its Subsidiaries or any Guarantor in the performance
(beyond the applicable grace period with respect thereto, if any) of any
term, provision or condition contained in any Material Indebtedness
Agreement, or any other event shall occur or condition exist, the effect of
38
which default, event or condition is to cause, or to permit the holder(s)
of such Material Indebtedness or the lender(s) under any Material
Indebtedness Agreement to cause, such Material Indebtedness to become due
prior to its stated maturity or any commitment to lend under any Material
Indebtedness Agreement to be terminated prior to its stated expiration
date; or any Material Indebtedness of the Borrower or any of its
Subsidiaries or any Guarantor shall be declared to be due and payable or
required to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Borrower or any of
its Subsidiaries shall not pay, or admit in writing its inability to pay,
its debts generally as they become due.
7.6. The Borrower, the General Partner, any Guarantor, or any of its
Subsidiaries which contribute $10,000,000 or more to the Total Asset Value,
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 with respect to the
Borrower, the General Partner or any Guarantor any substantial portion of
its Property or in the case of any Subsidiary, Property which contributes
$10,000,000 or more to the Total Asset Value, (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 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 or partnership
action to authorize or effect any of the foregoing actions set forth in
this Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower,
any Guarantor, or any of its Subsidiaries which contribute $10,000,000 or
more to the Total Asset Value, a receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower, Guarantor or any of
such Subsidiaries or with respect to the Borrower, the General Partner or
any Guarantor any substantial portion of its Property or in the case of any
Subsidiary Property which contributes $10,000,000 or more to the Total
Asset Value, or a proceeding described in Section 7.6(iv) shall be
instituted against the Borrower any Guarantor, or any of such Subsidiaries
and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days.
7.8. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower and its Subsidiaries or any
Guarantor which, when taken together with all other Property of the
Borrower and its Subsidiaries or any Guarantor so condemned, seized,
appropriated, or taken custody or control of, during the twelve month
period ending with the month in which any such action occurs, constitutes a
Substantial Portion.
7.9. The Borrower, General Partner or any of their Subsidiaries
shall fail within 30 days to pay, bond or otherwise discharge one or more
(i) judgments or orders for the payment of money in excess of $10,000,000
(or the equivalent thereof in currencies other than U.S. Dollars) in the
aggregate (provided that for judgments against unconsolidated Subsidiaries,
only the Consolidated Group Pro Rata Share of such judgment shall be
included in determining whether the $10,000,000 threshold is exceeded), or
(ii) nonmonetary judgments or orders which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect,
which judgment(s), in any such case, is/are not stayed on appeal or
otherwise being appropriately contested in good faith.
39
7.10. Any Change in Control shall occur.
7.11. The Borrower or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Borrower, any of its Subsidiaries or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i)
or clause (ii), would reasonably be expected to have a Material Adverse
Effect.
7.12. The occurrence of any "default", as defined in 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.
7.13. Any Guaranty shall fail to remain in full force or effect or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply
with any of the terms or provisions of any Guaranty to which it is a party,
or any Guarantor shall deny that it has any further liability under any
Guaranty to which it is a party, or shall give notice to such effect
(excluding in each case the occurrence of the foregoing as a result of a
Guarantor ceasing to exist or ceasing to be a Subsidiary as a result of a
transaction permitted elsewhere in this Agreement).
7.14. The representations and warranties set forth in Section 5.15
(Plan Assets; Prohibited Transactions) shall at any time not be true and
correct.
ARTICLE VIII
ACCELERATION. WAIVERS. AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. ACCELERATION.
(i) If any Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the Obligations shall immediately
become due and payable without any election or action on the part of
the Agent, or any Lender. If any other Default occurs, the Required
Lenders (or the Agent with the consent of the Required Lenders) may
by notice to Borrower declare the Obligations to be due and payable,
whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives.
(ii) If, after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Loans as a
result of any Default (other than any Default as described in Section
7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been
obtained or entered, the Required Lenders (in their sole discretion)
shall so direct, the Agent shall, by notice to the Borrower, rescind
and annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into written 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 of
the Lenders:
40
(i) Extend the final maturity of the Term Loan, to a date
after the Facility Termination Date or forgive all or any portion of
the principal amount thereof, interest or fees thereon (other than
additional interest due as a result of a Default), or reduce the rate
or extend the time of payment of interest or fees thereon or related
thereto.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Extend the Facility Termination Date, or increase the
amount of the Term Loan to an amount greater than $125,000,000 or
increase the Commitment of any Lender hereunder (excluding any
increase as a result of an assignment of Commitments permitted under
Section 12.3) without such Lender's consent, or permit the Borrower
to assign its rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release any Guarantor except as permitted under
Section 7.13 hereof.
(vi) Waive a Default under Section 7.2 related to the
nonpayment of principal or interest.
No amendment of any provision of this Agreement relating to the Agent shall
be effective without the written consent of the Agent. The Agent may waive
payment of the fee required under Section 12.3.3.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders, or
the 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 Credit Extension notwithstanding the existence
of a Default or the inability of the Borrower to satisfy the conditions
precedent to such Credit Extension 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 8.2, 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 Agent, and the Lenders until the Obligations
have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrower contained in this Agreement shall survive the making of the
Credit Extensions herein contemplated.
9.2. 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.
9.3. 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.
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9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, and the Lenders
and supersede all prior agreements and understandings among the Borrower,
the Agent and the Lenders relating to the subject matter thereof other than
those contained in the fee letter described in Section 10.13 which shall
survive and remain in full force and effect during the term of this
Agreement.
9.5. 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 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.
9.6. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Agent for any costs, internal charges and out of pocket expenses (including
reasonable attorneys' fees and reasonable time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by
the Agent in connection with the preparation, negotiation, execution,
delivery, syndication, distribution (including, without limitation, via the
internet), review, amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent and the Lenders
for any costs, internal charges and out of pocket expenses (including
reasonable attorneys' fees and reasonable time charges of attorneys for the
Agent and the Lenders, which attorneys may be employees of the Agent or the
Lenders) paid or incurred by the Agent or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being reimbursed
by the Borrower under this Section include, without limitation, costs and
expenses incurred in connection with the Reports described in the following
sentence. The Borrower acknowledges that from time to time Agent may
prepare and may distribute to the Lenders (but shall have no obligation or
duty to prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrower's assets for internal use by Agent
from information furnished to it by or on behalf of the Borrower, after
Agent has exercised its rights of inspection pursuant to this Agreement.
The Borrower hereby further agrees to indemnify the Agent, each
Lender, their respective affiliates, and each of their directors, officers
and employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses of
litigation or preparation therefor whether or not the Agent, any Lender or
any affiliate is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Credit Extension hereunder
except to the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6
shall survive the termination of this Agreement.
9.7. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.8. 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 Agreement
Accounting Principles.
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9.9. 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.
9.10. NONLIABILITY OF LENDERS. The relationship between the Borrower
on the one hand and the Lenders and the Agent on the other hand shall be
solely that of borrower and lender. Neither the Agent nor any Lender shall
have any fiduciary responsibilities to the Borrower. Neither the Agent 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. The Borrower agrees that neither the
Agent nor any Lender shall have liability to the Borrower (whether sounding
in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any
act, omission or event occurring in connection therewith, unless it is
determined in a final non-appealable judgment by a court of competent
jurisdiction that such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought. Neither the Agent
nor any Lender shall have any liability with respect to, and the Borrower
hereby waives, releases and agrees not to ▇▇▇ for, any special, indirect,
consequential or punitive damages suffered by the Borrower in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to its Affiliates and to
other Lenders and their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a
Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which such Lender is a
party, (vi) to such Lender's direct or indirect contractual counterparties
in swap agreements or to legal counsel, accountants and other professional
advisors to such counterparties, (vii) permitted by Section 12.4 and (viii)
to rating agencies if requested or required by such agencies in connection
with a rating relating to the Advances hereunder. Notwithstanding anything
herein to the contrary, confidential information shall not include, and
each Lender (and each employee, representative or other agent of any
Lender) may disclose to any and all Persons, without limitation of any
kind, the "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or
other tax analyses) that are or have been provided to such Lender relating
to such tax treatment or tax structure other than information or materials
for which nondisclosure is reasonably necessary in order to comply with
applicable securities laws so long as disclosure is not otherwise limited;
provided that with respect to any document or similar item that in either
case contains information concerning such tax treatment or tax structure of
the transactions contemplated hereby as well as other information, this
sentence shall only apply to such portions of the document or similar item
that relate to such tax treatment or tax structure.
9.12. NONRELIANCE. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of
the Board of Governors of the Federal Reserve System) for the repayment of
the Credit Extensions provided for herein.
9.13. DISCLOSURE. The Borrower and each Lender hereby acknowledge and
agree that Agent and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with the
Borrower and its Affiliates.
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9.14. USA PATRIOT ACT NOTICE, COMPLIANCE. The USA Patriot Act of 2001
(Public Law 107-56) and federal regulations issued with respect thereto
require all financial institutions to obtain, verify and record certain
information that identifies individuals or business entities which open an
"account" with such financial institution. Consequently, Agent (for itself
and/or as Agent for all Lenders hereunder) may from time-to-time request,
and Borrower shall provide to Agent, Borrower's name, address, tax
identification number and/or such other identification information as shall
be necessary for Agent to comply with federal law. An "account" for this
purpose may include, without limitation, a deposit account, cash management
service, a transaction or asset account, a credit account, a loan or other
extension of credit, and/or other financial services product.
9.15. LENDER APPROVAL PROCEDURE. All communications from the Agent to
any Lender requesting such Lender's determination, consent, approval or
disapproval (a) shall be given in the form of a written notice to such
Lender, (b) shall be accompanied by a description of the matter or issue as
to which such determination, approval, consent or disapproval is requested,
or shall advise such Lender where information, if any, regarding such
matter or issue may be inspected, or shall otherwise describe the matter or
issue to be resolved, (c) shall include, if reasonably requested by such
Lender and to the extent not previously provided to such Lender, written
materials and a summary of all oral information provided to the Agent by
the Borrower in respect of the matter or issue to be resolved, and (d)
shall include the Agent's recommended course of action or determination in
respect thereof. Unless a Lender shall give written notice to the Agent
that it specifically objects to the recommendation or determination of the
Agent (together with a reasonable written explanation of the reasons behind
such objection) within ten (10) Business Days (or such lesser or greater
period as may be specifically required under the express terms of the Loan
Documents) of receipt of such communication, such Lender shall be deemed to
have conclusively approved of or consented to such recommendation or
determination.
ARTICLE X
THE AGENT
---------
10.1. APPOINTMENT; NATURE OF RELATIONSHIP. ▇▇▇▇▇ Fargo Bank, N.A. is
hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the "Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Agent to act
as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent
agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of the
defined term "Agent," it is expressly understood and agreed that the Agent
shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely
acting as the contractual representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Agent (i) does not hereby assume any fiduciary duties to any of the
Lenders, (ii) is a "representative" of the Lenders within the meaning of
the term "secured party" as defined in the Illinois Uniform Commercial Code
and (iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the
other Loan Documents. Each of the Lenders hereby agrees to assert no claim
against the Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
44
10.2. POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental
thereto. The 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 Agent.
10.3. GENERAL IMMUNITY. Neither the 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 to the extent such action or inaction is determined in a
final non-appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC; DELIVERY OF
INFORMATION. Neither the Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (a) any statement, warranty or representation made
in connection with any Loan Document or any borrowing hereunder; (b) 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; (c)
the satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered solely to the Agent; (d) the existence or
possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of
any Lien in any collateral security; or (g) the financial condition of the
Borrower or any guarantor of any of the Obligations or of any of the
Borrower's or any such guarantor's respective Subsidiaries. The Agent shall
distribute to Lenders copies of material notices and information furnished
to Agent in accordance with the terms of this Agreement, which may be
distributed by posting on Intralinks or other customary distribution
methods. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the
Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions
signed by the Required Lenders, and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders.
The Lenders hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders. The Agent shall be
fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first 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.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys in fact and shall not be
answerable to the Lenders, except as to money or securities received by it
or its authorized agents, for the default or misconduct of any such agents
or attorneys in fact selected by it with reasonable care. The Agent shall
be entitled to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to the Agent's
duties hereunder and under any other Loan Document.
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10.7. RELIANCE ON DOCUMENTS; COUNSEL. The 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 Agent, which counsel may be employees of the Agent.
10.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to
their Commitments immediately prior to such termination) (i) for any
amounts not reimbursed by the Borrower for which the Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Agent on behalf of the Lenders, in connection with
the preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses incurred by
the Agent in connection with any dispute between the Agent and any Lender
or between two or more of the Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against
the Agent in connection with any dispute between the Agent and any Lender
or between two or more of the Lenders), or the enforcement of any of the
terms of the Loan Documents or of any such other documents, provided that
(i) no Lender shall be liable for any of the foregoing to the extent any of
the foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this Agreement.
10.9. NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default" or unless the
default is a failure by Borrower to pay principal, interest or fees due in
accordance with this Agreement. In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Lenders.
10.10. RIGHTS AS A LENDER. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other
Loan Document with respect to its Commitment and its Loans as any Lender
and may exercise the same as though it were not the Agent, and the term
"Lender" or "Lenders" shall, at any time when the Agent is a Lender, unless
the context otherwise indicates, include the Agent in its individual
capacity. The Agent and its Affiliates 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.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Loan Documents.
46
10.12. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to
be effective upon the appointment of a successor Agent or, if no successor
Agent has been appointed, forty-five days after the retiring Agent gives
notice of its intention to resign. The Agent may be removed at any time
with cause by written notice received by the Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Agent which successor Agent shall, unless a Default shall have
occurred and be continuing, be acceptable to Borrower (such consent not to
be unreasonably withheld or delayed). If no successor Agent shall have been
so appointed by the Required Lenders within thirty days after the resigning
Agent's giving notice of its intention to resign, then the resigning Agent
may appoint, on behalf of the Borrower and the Lenders, a successor Agent.
Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrower or any Lender, appoint any of its Affiliates
which is a commercial bank as a successor Agent hereunder. If the Agent has
resigned or been removed and no successor Agent has been appointed, the
Lenders may perform all the duties of the 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 Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning or removed Agent. Upon the effectiveness of the resignation or
removal of the Agent, the resigning or removed Agent shall be discharged
from its duties and obligations hereunder and under the Loan Documents.
After the effectiveness of the resignation or removal of an Agent, the
provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger,
or the Agent assigns its duties and obligations to an Affiliate pursuant to
this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Agent.
10.13. AGENT FEES. The Borrower agrees to pay to the Agent the fees
agreed to by the Borrower and, the Agent pursuant to that certain letter
agreement dated November 19, 2004, or as otherwise agreed from time to
time.
10.14. DELEGATION TO AFFILIATES. The Borrower and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection with
this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Agent
is entitled under Articles IX and X.
ARTICLE XI
SETOFF; PAYMENTS; DEFAULTING LENDERS
------------------------------------
11.1. SETOFF. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default occurs, any and all deposits (including
all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or
owing by any Lender or any Affiliate of any Lender to or for the credit or
account of the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any
part thereof, shall then be due.
47
11.2. PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans or other Outstanding Credit Exposure
(other than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5,
such Lender agrees, promptly upon demand, to purchase a portion of the
Loans and other Outstanding Credit Exposure held by the other Lenders so
that after such purchase each Lender will hold its Pro Rata Share of the
Aggregate Outstanding Credit Exposure. 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 respective Pro Rata
Shares of the Loans and other Aggregate Outstanding Credit Exposure. In
case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
11.3. 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 such Lender is no longer a Defaulting Lender. If a Defaulting
Lender has failed to fund its Pro Rata Share of any Advance and until such
time as such Defaulting Lender subsequently funds its Pro Rata Shares of
such Advance or, 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 Pro Rata
Share (such principal, interest and fees being referred to as "Senior
Loans" for the purposes of this section). All amounts paid by the Borrower
and otherwise due to be applied to the Obligations owing to such Defaulting
Lender pursuant to the terms hereof shall be distributed by the Agent to
the other Lenders in accordance with their respective Percentages
(recalculated for the purposes hereof to exclude the Defaulting Lender)
until all Senior Loans have been paid in full. At that point, the
"Defaulting Lender" shall no longer be deemed a Defaulting Lender. After
the Senior Loans have been paid in full, equitable adjustments will be made
in connection with future payments by the Borrower to the extent a portion
of the Senior Loans had been repaid with amounts that otherwise would have
been distributed to a Defaulting Lender but for the operation of this
Section 11.13. This provision governs only the relationship among the
Agent, each Defaulting Lender and the other Lenders; nothing hereunder
shall limit the obligation of the Borrower to repay all Loans and other
Obligations 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.
48
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. 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 respective successors and assigns permitted
hereby, except that (i) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents without the prior written
consent of each Lender, (ii) any assignment by any Lender must be made in
compliance with Section 12.3, and (iii) any transfer by Participation must
be made in compliance with Section 12.2. Any attempted assignment or
transfer by any party not made in compliance with this Section 12.1 shall
be null and void, unless such attempted assignment or transfer is treated
as a participation in accordance with Section 12.3.2. The parties to this
Agreement acknowledge that clause (ii) of this Section 12.1 relates only to
absolute assignments and this Section 12.1 does not prohibit assignments
creating security interests, including, without limitation, (x) any pledge
or assignment by any Lender of all or any portion of its rights under this
Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a Fund, any pledge or assignment of all or any portion of
its rights under this Agreement and any Note to its trustee in support of
its obligations to its trustee; provided, however, that no such pledge or
assignment creating a security interest shall release the transferor Lender
from its obligations hereunder unless and until the parties thereto have
complied with the provisions of Section 12.3. The Agent may treat the
Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such Person complies with Section
12.3; provided, however, that the Agent may in its discretion (but shall
not be required to) follow instructions from the Person which made any Loan
or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees
by acceptance of such assignment 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 owner of the rights to any Loan (whether or not a Note has
been issued in evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.
12.2. PARTICIPATIONS.
12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Outstanding Credit Exposure of such Lender,
any Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the owner of its
Outstanding Credit Exposure and the holder of any Note issued to it in
evidence thereof 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
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2 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 Credit Extension
or Commitment in which such Participant has an interest which would require
consent of all of the Lenders pursuant to the terms of Section 8.2 or of
any other Loan Document.
49
12.2.3 BENEFIT OF CERTAIN PROVISIONS. The Borrower agrees that
each Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a
Lender. The Borrower further agrees that each Participant shall be entitled
to the benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to
Section 12.3, provided that (i) a Participant shall not be entitled to
receive any greater payment under Section 3.1, 3.2 or 3.5 than the Lender
who sold the participating interest to such Participant would have received
had it retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of the
Borrower, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of Section 3.5 to the same extent as if it were a Lender.
12.3. ASSIGNMENTS.
12.3.1 PERMITTED ASSIGNMENTS. Any Lender may at any time assign
to one or Eligible Assignees (each a "Purchaser") all or any part of its
rights and obligations under the Loan Documents subject to the terms and
conditions hereof. Such assignment shall be substantially in the form of
Exhibit C or in such other form as may be agreed to by the parties thereto.
Each such assignment shall either be in an amount equal to the entire
applicable Commitment and Loans of the assigning Lender or (unless each of
the Borrower and the Agent otherwise consents) be in an aggregate amount
not less than $5,000,000. The amount of the assignment shall be based on
the Commitment or outstanding Loans (if the Commitment has been terminated)
subject to the assignment, determined as of the date of such assignment or
as of the "Trade Date," if the "Trade Date" is specified in the assignment.
12.3.2 CONSENTS. The consent of the Borrower shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender,
an Affiliate of a Lender or an Approved Fund, provided that the consent of
the Borrower shall not be required if a Default has occurred and is
continuing. The consent of the Agent shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund. Any consent required under this
Section 12.3.2 shall not be unreasonably withheld or delayed.
12.3.3 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent
of an assignment, together with any consents required by Sections 12.3.1
and 12.3.2, and (ii) payment by the assignor or assignee of a $4,000 fee to
the Agent for processing such assignment (unless such fee is waived by the
Agent), such assignment shall become effective on the effective date
specified in such assignment. The 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 Outstanding Credit Exposure under the
applicable assignment agreement constitutes "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 or
on behalf of 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 thereto, and the transferor Lender shall be released with
respect to the Commitment and Outstanding Credit Exposure assigned to such
Purchaser without any further consent or action by the Borrower, the
Lenders or the Agent. In the case of an assignment covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
50
shall cease to be a Lender hereunder but shall continue to be entitled to
the benefits of, and subject to, those provisions of this Agreement and the
other Loan Documents which survive payment of the Obligations and
termination of the applicable agreement. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply
with this Section 12.3 shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with Section 12.2. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.3, the transferor Lender, the Agent
and the Borrower shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate arrangements so that
new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts reflecting
their respective Commitments, as adjusted pursuant to such assignment.
12.3.4 REGISTER. The Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amounts of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
12.4. 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, including without limitation any information
contained in any Reports; provided that each Transferee and prospective
Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of
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 3.5(iv).
ARTICLE XIII
NOTICES
-------
13.1. NOTICES. Except as otherwise permitted by Section 2.12 with
respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower, General
Partner or the Agent, at its address or facsimile number set forth on the
signature pages hereof, except that in the case of Borrower and General
Partner, a copy shall also be sent to the attention of its legal department
at the same address or facsimile number (y) in the case of any Lender, at
its address or facsimile number set forth below its signature hereto or (z)
in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Agent and the
Borrower in accordance with the provisions of this Section 13.1. Each such
notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified
51
in this Section and confirmation of receipt is received, (ii) if given by
mail, three Business Days after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, or (iii) if
given by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section; provided
that notices to the Agent under Article II shall not be effective until
received.
13.2. CHANGE OF ADDRESS. The Borrower, the 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.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
------------------------------------------------------------
15.1. 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 (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE 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 AGENT OR ANY LENDER OR ANY AFFILIATE OF THE 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.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE 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.
52
ARTICLE XVI
EXCULPATION
-----------
Notwithstanding anything to the contrary contained herein or in any
other document executed in connection with the transaction contemplated
hereby, no personal liability or personal deficiency judgment shall be
asserted or enforced against any limited partners of the Borrower, against
the trustees, officers, employees, agents, partners, shareholders or
principals of such limited partners or of the general partner of the
Borrower, or against the assets of any such parties, for the payment of any
amount hereunder or under any of the other documents executed in connection
with the closing of the transaction contemplated herein or for the
observance or performance of any of the obligations contained therein.
Notwithstanding anything herein to the contrary, the negative capital
account of any partner in the Borrower or the obligation of any partner in
the Borrower to make a capital contribution to the Borrower shall not be
deemed to be an asset of the Borrower. In no event shall the provisions of
this Article limit the liability of any Guarantor under a separate
Guaranty.
53
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
AMLI RESIDENTIAL PROPERTIES, L.P.
By: AMLI RESIDENTIAL PROPERTIES TRUST
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Address for notices:
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
FAX: (▇▇▇)▇▇▇-▇▇▇▇
AMLI RESIDENTIAL PROPERTIES TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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Address for notices:
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
FAX: (▇▇▇)▇▇▇-▇▇▇▇
S-1
Commitments
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$45,000,000 ▇▇▇▇▇ FARGO BANK, N.A.,
Individually and as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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Address for notices:
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▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
S-2
$30,000,000 COMMERZBANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Vice President
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Address for notices:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
S-3
$25,000,000 PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Asst. Vice President
Address for notices:
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One PNC ▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
S-4
$10,000,000 COMERICA BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Address for notices:
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▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
S-5
