AMENDED AND RESTATED SENIOR REVOLVING CREDIT AGREEMENT DATED AS OF DECEMBER 30, 2010 AMONG TERRENO REALTY LLC, AS BORROWER AND KEYBANK NATIONAL ASSOCIATION AS ADMINISTRATIVE AGENT KEYBANC CAPITAL MARKETS AS LEAD ARRANGER AND THE SEVERAL LENDERS FROM...
Exhibit 10.1
AMENDED AND RESTATED SENIOR REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 30, 2010
AMONG
TERRENO REALTY LLC,
AS BORROWER
AS BORROWER
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
AS ADMINISTRATIVE AGENT
KEYBANC CAPITAL MARKETS
AS LEAD ARRANGER
AS LEAD ARRANGER
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AS LENDERS
FROM TIME TO TIME PARTIES HERETO,
AS LENDERS
AMENDED AND RESTATED SENIOR REVOLVING CREDIT AGREEMENT
This Amended and Restated Senior Revolving Credit Agreement (“Agreement”), dated as of
December 30, 2010, is among Terreno Realty LLC, a limited liability company organized under the
laws of the State of Delaware (the “Borrower”), KeyBank National Association, a national
banking association, both individually as a “Lender” and as “Administrative Agent”,
KeyBanc Capital Markets as “Lead Arranger,” and the several banks, financial institutions
and other entities which may from time to time become parties to this Agreement as additional
“Lenders”.
RECITALS
A. Borrower is primarily engaged in the business of purchasing, owning, operating, leasing and
managing industrial properties.
B. Borrower’s sole member, Terreno Realty Corporation, a Maryland corporation (“Parent
Guarantor”) is qualified as a real estate investment trust under Section 856 of the Code.
C. This Agreement amends and restates in its entirety that certain Senior Revolving Credit
Agreement dated as of March 24, 2010, as amended by First Amendment to Senior Revolving Credit
Agreement dated as of November 19, 2010 by and among the Administrative Agent, the Lead Arranger,
KeyBank National Association, as the sole Lenders and the Borrower (the “Original Credit
Agreement”).
D. Borrower desires to amend the Original Credit Agreement to increase the Aggregate
Commitment thereunder by adding one or more new Lenders as parties thereto and to make certain
changes to the terms and conditions thereof and Lenders are willing to do so on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement:
“Adjusted EBITDA” means, as of any date, an annualized amount determined by multiplying two
(2) times the Consolidated EBITDA for the most recent fiscal quarter of Borrower for which
financial results have been reported and the immediately preceding fiscal quarter (or until
Borrower has been existence for two full fiscal quarters, by multiplying four (4) times the
Consolidated EBITDA for the most recent such fiscal quarter) and deducting from such annualized
amount an annual amount for capital expenditures equal to $0.15 per square foot times the weighted
daily average rentable area of Projects owned by the Consolidated Group or any Investment Affiliate
(but only deducting the applicable Consolidated Group Pro Rata Share of such amount with respect to
such Investment Affiliate) during the applicable calculation period for such annualized
Consolidated EBITDA.
“Adjusted Borrowing Base NOI” means, as of any date, then-current Borrowing Base NOI
attributable to all Borrowing Base Properties then included in the Borrowing Base Pool less
an
amount for capital expenditures equal to $0.15 per annum times the aggregate rentable area of
such Borrowing Base Properties.
“Administrative Agent” means KeyBank National Association in its capacity as agent for the
Lenders pursuant to Article X, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to Article X.
“Advance” means a borrowing hereunder consisting of the aggregate amount of the several Loans
made by one or more of the Lenders to Borrower of the same Type and, in the case of LIBOR Advances,
for the same LIBOR Interest Period, including without limitation Swingline Advances.
“Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting securities (or
other ownership interests) of the controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
“Aggregate Commitment” means, as of any date, the aggregate of the then-current Commitments of
all the Lenders, which is currently $80,000,000, as such amount may be increased pursuant to
Section 2.2 hereof.
“Agreement” means this Amended and Restated Senior Revolving Credit Agreement, as it may be
amended or modified and in effect from time to time.
“Agreement Execution Date” means the date this Agreement has been fully executed and delivered
by all parties hereto.
“Anti-Terrorism Laws” is defined in Section 5.28.
“Applicable Margin” means, as applicable, the Base Rate Applicable Margin or the LIBOR
Applicable Margin which are used in calculating the interest rate applicable to the various Types
of Advances.
“Article” means an article of this Agreement unless another document is specifically
referenced.
“Authorized Officer” means any of the Chief Executive Officer, President, Chief Financial
Officer of Borrower, or Chief Accounting Officer acting singly.
“Bankruptcy Code” means the Bankruptcy Code of the United States of America, as amended from
time to time.
“Base Rate” means, for any day, a rate per annum equal to the Floor Base Rate for such day
plus the Base Rate Applicable Margin for such day, in each case changing as and when the Floor Base
Rate changes.
“Base Rate Advance” means an Advance that bears interest at the Base Rate.
“Base Rate Applicable Margin” means, as of any date with respect to any Base Rate Advance, the
applicable per annum amount then in effect pursuant to Section 2.3 hereof.
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“Base Rate Loan” means a Loan that bears interest at the Base Rate.
“Borrower” means Terreno Realty LLC, a limited liability company organized under the laws of
the State of Delaware, and its successors and assigns.
“Borrowing Base Debt Service Coverage” means, as of any date, the then-current Adjusted
Borrowing Base NOI divided by the then-current Implied Facility Debt Service.
“Borrowing Base Leverage Ratio” means the Outstanding Facility Amount divided by Borrowing
Base Value, expressed as a percentage.
“Borrowing Base NOI” means, as of any date, the amount determined by multiplying four (4)
times the sum of (a) the aggregate Net Operating Income for the most recent fiscal quarter of
Borrower for which financial results have been reported attributable to all Borrowing Base
Properties owned by a Subsidiary Guarantor as of such date and for the entirety of such fiscal
quarter plus, (b) in the case of any Borrowing Base Property that is owned as of such date
but was not so owned for such full fiscal quarter, the additional amount of Net Operating Income
that would have been earned if such Borrowing Base Property had been so owned for such full fiscal
quarter.
“Borrowing Base Pool” means, as of any date, all Qualifying Borrowing Base Properties as of
such date.
“Borrowing Base Property” means, as of any date, any Qualifying Borrowing Base Property which
has not been released from the Borrowing Base Pool in accordance with Section 2.22(iii)
hereof.
“Borrowing Base Value” means, as of any date, the sum of (x) the Borrowing Base NOI
attributable to all Borrowing Base Properties owned by a Subsidiary Guarantor as of such date of
determination which have been owned by such Subsidiary Guarantor for the most recent two (2) full
fiscal quarters for which financial results of Borrower have been reported, divided by the
Capitalization Rate plus (y) the aggregate cost value basis of all Borrowing Base Properties owned
by a Subsidiary Guarantor as of such date of determination which were not so owned for such period
of two (2) consecutive full fiscal quarters, provided that notwithstanding the foregoing, the Warm
Springs Borrowing Base Property shall be valued at fifty percent (50%) of its cost value basis
until the Occupancy Percentage of such Borrowing Base Property reaches the level required under
clause (b) of the definition of “Qualifying Borrowing Base Property.”
“Borrowing Date” means a date on which an Advance is made hereunder.
“Borrowing Notice” is defined in Section 2.9.
“Business Day” means (i) with respect to any borrowing, payment or rate selection of LIBOR
Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Cleveland,
Ohio and New York, New York for the conduct of substantially all of their commercial lending
activities and on which dealings in United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Cleveland, Ohio and New York, New York for the conduct of substantially all
of their commercial lending activities.
“Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a
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Person which is not a corporation and any and all warrants or options to purchase any of the
foregoing.
“Capitalization Rate” means eight and one-half percent (8.5%).
“Capitalized Lease” of a Person means any lease of Property imposing obligations on such
Person, as lessee thereunder, which are required in accordance with GAAP to be capitalized on a
balance sheet of such Person.
“Capitalized Lease Obligations” of a Person means the amount of the obligations of such Person
under Capitalized Leases which would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
“Cash Equivalents” means, as of any date:
(i) securities issued or directly and fully guaranteed or insured by the United States
Government or any agency or instrumentality thereof having maturities of not more than one
year from such date;
(ii) mutual funds organized under the United States Investment Company Act rated AAm or
AAm-G by S&P and P-1 by Xxxxx’x;
(iii) certificates of deposit or other interest-bearing obligations of the
Administrative Agent (or an Affiliate thereof) or a bank or trust company which is a member
in good standing of the Federal Reserve System having a short term unsecured debt rating of
not less than A-1 by S&P and not less than P-1 by Xxxxx’x (or in each case, if no bank or
trust company is so rated, the highest comparable rating then given to any bank or trust
company, but in such case only for funds invested overnight or over a weekend) provided that
such investments shall mature or be redeemable upon the option of the holders thereof on or
prior to a date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing obligations of the
Administrative Agent (or an Affiliate thereof) or a bank or trust company which is a member
in good standing of the Federal Reserve System having a short term unsecured debt rating of
not less than A-1+ by S&P, and not less than P-1 by Xxxxx’x and which has a long term
unsecured debt rating of not less than A1 by Xxxxx’x (or in each case, if no bank or trust
company is so rated, the highest comparable rating then given to any bank or trust company,
but in such case only for funds invested overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the option of the holders thereof on or prior
to a date three months from the date of their purchase;
(v) bonds or other obligations having a short term unsecured debt rating of not less
than A-1+ by S&P and P-1+ by Xxxxx’x and having a long term debt rating of not less than A1
by Xxxxx’x issued by or by authority of any state of the United States, any territory or
possession of the United States, including the Commonwealth of Puerto Rico and agencies
thereof, or any political subdivision of any of the foregoing;
(vi) repurchase agreements issued by an entity rated not less than A-1+ by S&P, and not
less than P-1 by Xxxxx’x which are secured by U.S. Government securities of the type
described in clause (i) of this definition maturing on or prior to a date one month from the
date the repurchase agreement is entered into;
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(vii) short term promissory notes rated not less than A-1+ by S&P, and not
less than P-1 by Xxxxx’x maturing or to be redeemable upon the option of the holders thereof
on or prior to a date one month from the date of their purchase; and
(viii) commercial paper (having original maturities of not more than 365 days) rated at
least A-1+ by S&P and P-1 by Xxxxx’x and issued by a foreign or domestic issuer who, at the
time of the investment, has outstanding long-term unsecured debt obligations rated at least
A1 by Xxxxx’x.
“Change of Control” means (i) any transfer of ownership resulting in Parent Guarantor owning
less than 100% of the equity interests in Borrower or (ii) any change in the membership of Parent
Guarantor’s Board of Directors which results in (x) those board members having served for such
Board of Directors throughout the preceding twelve (12) month period (or since the date of Parent
Guarantor’s organization in the case of the first twelve (12) months after Parent Guarantor’s
organization) (“Existing Directors”) and (y) directors approved by Existing Directors as of any
date constituting less than 50% of the total board members at such time.
“Change in Management” means the failure of at least one of the Parent Guarantor’s Chief
Executive Officer and the Guarantor’s President and Chief Financial Officer as of the Agreement
Execution Date (or any successor to either such individual hereafter approved by the Administrative
Agent) to continue to be active on a daily basis in the management of Borrower provided that if
both of such individuals shall die or become disabled or otherwise cease to be active in the
management of Borrower, Borrower shall have one hundred twenty (120) days to retain a replacement
executive of comparable experience which is reasonably satisfactory to the Administrative Agent.
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.
“Collateral” means all of the property, rights and interests of Borrower and its Subsidiaries
that are subject to the security interests and Liens created by the Security Documents.
“Collateral Assignment” means the Collateral Assignment of Interests in the form of
Exhibit K attached hereto from Borrower to the Administrative Agent, for the benefit of the
Lenders, as the same may be modified, amended or restated, pursuant to which there shall be granted
to the Administrative Agent on behalf of the Lenders a first priority lien and security interest in
the applicable Pledged Equity Interests and the other interests of Borrower in the Collateral
described therein, and any further assignments, certificates, powers, consents, acknowledgments,
estoppels or UCC-1 financing statements that may be delivered in connection therewith.
“Commitment” means, for each Lender, the obligation of such Lender to make Loans and issue
Facility Letters of Credit not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become effective pursuant
to Section 12.3.2, as such amount may be modified from time to time pursuant to the terms
hereof.
“Consolidated EBITDA” means, for any period without duplication an amount equal to the net
income or loss of the Consolidated Group determined in accordance with GAAP (before minority
interests and excluding losses attributable to the sale or other disposition of assets and the
adjustment for so-called “straight-line rent accounting”) for such period, plus (x) the
following to the extent deducted in computing such Consolidated Net Income for such period: (i)
Consolidated Total Interest Expense for such period, (ii) real estate depreciation and amortization
for such period, (iii)
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other non-cash charges for such period and (iv) acquisition costs for such
period with respect to all Projects acquired by Borrower or another member of the Consolidated
Group; and minus (y) all gains attributable to the sale or other disposition of assets or
debt restructurings in such period, adjusted to
include the Consolidated Group Pro Rata Share of the net income or loss of all Investment
Affiliates for such period, determined and adjusted in the same manner as provided above in this
definition with respect to the Consolidated Group’s net income or loss. Notwithstanding the
foregoing, until Consolidated Gross Asset Value is equal to or greater than $600,000,000, the
amount of the Consolidated Group’s general and administrative expense for any period to be used in
any calculations made under this definition shall be capped at eight percent (8%) of the aggregate
Net Operating Income of all Projects owned by Borrower or another member of the Consolidated Group
for all or any portion of such period.
“Consolidated Fixed Charges” means, for any period, without duplication, the sum of (a)
Consolidated Interest Expense for such period plus (b) the aggregate amount of scheduled
principal payments attributable to Consolidated Outstanding Indebtedness (excluding optional
prepayments and scheduled principal payments due on maturity of any such Indebtedness) required to
be made during such period by any member of the Consolidated Group plus (c) a percentage of
all such scheduled principal payments required to be made during such period by any Investment
Affiliate on Indebtedness taken into account in calculating Consolidated Interest Expense, equal to
the greater of (x) the percentage of the principal amount of such Indebtedness for which any member
of the Consolidated Group is liable and (y) the Consolidated Group Pro Rata Share of such
Investment Affiliate plus (d) Preferred Dividends with respect to such period plus
(e) all rental payments due and payable with respect to such period under ground leases of
Properties at which one or more members of the Consolidated Group are tenants.
“Consolidated Gross Asset Value” means, as of any date, (i) the aggregate Net Operating Income
for the two (2) most recent full fiscal quarters of Borrower for which financial results have been
reported attributable to Projects owned by Borrower or another member of the Consolidated Group as
of the last day of such period (excluding both Development Projects and 100% of the aggregate Net
Operating Income attributable to any Projects not so owned for such two (2) most recent full fiscal
quarters), multiplied by two (2), with the product thereof divided by the Capitalization Rate, plus
(ii) the cost basis value for any such Projects first acquired by Borrower or a member of the
Consolidated Group during such two (2) consecutive full fiscal quarters, plus (iii) Cash and Cash
Equivalents owned by the Consolidated Group on the last day of such most recent fiscal quarter,
plus (iv) the Consolidated Group’s Pro Rata Share of the aggregate Net Operating Income for the two
(2) most recent full fiscal quarters of Borrower for which financial results have been reported
attributable to Projects owned by Investment Affiliates on the last day of such period (excluding
Development Projects and 100% of the aggregate Net Operating Income attributable to any Projects
not so owned for such two (2) most recent full fiscal quarters) multiplied by two (2), with the
product divided by the Capitalization Rate, plus (v) the Consolidated Group Pro Rata Share of such
the cost value basis of any Projects not so owned for such two (2) most recent full fiscal quarters
by an Investment Affiliate, plus (vi) the cost value basis of all Development Projects of Borrower
or any other member of the Consolidated Group, as of the last day of such most recent fiscal
quarter, plus (vii) the cost value basis of any Unimproved Land owned by Borrower or any other
member of the Consolidated Group as of the last day of such most recent fiscal quarter.
“Consolidated Group” means Parent Guarantor, Borrower and all Subsidiaries which are
consolidated with it for financial reporting purposes under GAAP.
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“Consolidated Group Pro Rata Share” means, with respect to any Investment Affiliate, the
percentage interest 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 Capital
Stock 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
aggregate amount of interest required to be paid, accrued, expensed or, to the extent it could be
expensed, capitalized in accordance with GAAP of the Consolidated Group for such period
attributable to Consolidated Outstanding Indebtedness during such period (including the Loans,
obligations under Capitalized Leases (to the extent Consolidated EBITDA has not been reduced by
such Capitalized Lease obligations in the applicable period), any Subordinated Indebtedness,
original issue discount and amortization of prepaid interest, if any, but excluding any Preferred
Distributions) plus (b) all amounts available for borrowing, or for drawing under letters
of credit (including the Facility Letters of Credit), if any, issued for the account of any member
of the Consolidated Group, but only if such interest was or is required to be reflected as an item
of expense, plus (c) all commitment fees, agency fees, facility fees, balance deficiency
fees and similar fees and expenses in connection with the borrowing of money plus (d) the
Consolidated Group Pro Rata Share of any such interest items, as similarly calculated and
determined in accordance with GAAP, of any Investment Affiliate, for such period, whether recourse
or non-recourse.
“Consolidated Net Income” means, for any period, the sum of (i) consolidated net income (or
loss) of the Consolidated Group for such period determined on a consolidated basis in accordance
with GAAP plus (ii) without duplication, the applicable Consolidated Group Pro Rata Share of the
net income (or loss) of each Investment Affiliate for such period determined in accordance with
GAAP.
“Consolidated Total Indebtedness” means, as of any date of determination, without duplication,
the sum of (a) all Indebtedness of the Consolidated Group at such date, determined on a
consolidated basis in accordance with GAAP, 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, provided that (x) to the extent that any member of
the Consolidated Group is providing a completion guaranty in connection with a construction loan
entered into by an Investment Affiliate, Consolidated Total Indebtedness shall include such
member’s pro rata liability under the Indebtedness relating to such completion guaranty (or, if
greater, such member’s potential liability under such completion guaranty) and (y) in connection
with the liabilities described in clauses (a) and (d) of the definition of “Indebtedness” (other
than completion guarantees) Consolidated Total Indebtedness shall include the portion of the
liabilities of such Investment Affiliate which is attributable to the Consolidated Group’s Pro Rata
Share of such Investment Affiliate or such greater amount of such liabilities for which any member
of the Consolidated Group is or has agreed to be, liable by way of guaranty, indemnity for borrowed
money, stop-loss agreement or the like, it being agreed that, in any case, Indebtedness of an
Investment Affiliate shall not be excluded from Consolidated Total Indebtedness by virtue of the
liability of such Investment Affiliate being Non-Recourse Indebtedness.
“Consolidated Tangible Net Worth” means, as of any date of determination, an amount equal to
(a) Consolidated Gross Asset Value minus (b) Consolidated Total Indebtedness as of such
date, provided that any amounts attributable to Projects that are required to be reported as
“intangibles”
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under GAAP pursuant to Financial Accounting Standards Board Statement of Policy No.
141 and 142 shall be permitted to be added back to “tangible property” for purposes of calculating
such Consolidated Tangible Net Worth.
“Construction in Progress” means, as of any date, the total construction cost expended as of
the applicable date to construct any Projects then under development plus the book value of all
land not then included in Unimproved Land.
“Controlled Group” means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together with 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 2.10.
“Default” means an event described in Article VII.
“Defaulting Lender” means any Lender which fails or refuses to perform its obligations under
this Agreement within the time period specified for performance of such obligation, or, if no time
frame is specified, if such failure or refusal continues for a period of five Business Days after
written notice from the Administrative Agent; provided that if such Lender cures such failure or
refusal, such Lender shall cease to be a Defaulting Lender.
“Default Rate” means the interest rate which may apply during the continuance of a Default
pursuant to Section 2.12.
“Development Project” means a project currently under development for which any member of the
Consolidated Group is actively pursuing construction of one or more buildings or other improvements
and for which construction is proceeding to completion without undue delay from permit denial,
construction delays or otherwise, all pursuant to such member’s ordinary course of business
provided that any such Project will no longer be considered a Development Project following a date
twelve (12) months after the first date on which a certificate of occupancy has issued for such
Development Project or on which such Development Project may otherwise be lawfully occupied for its
intended use.
“Drop Lots” means any parcel of land unimproved with material revenue producing buildings
(e.g., other than small miscellaneous structures such as security, stacks, maintenance sheds, etc.)
but which is accessible from public roads and highways, is fenced or otherwise enclosed and is
paved or otherwise prepared to accept the temporary storage of tractor trailers, containers or
other freight equipment.
“Eligible Assignee” means (a) another Lender, (b) with respect to any Lender, any Affiliate of
that Lender, (c) any commercial bank having a combined capital and surplus of $5,000,000,000 or
more, (d) the central bank of any country which is a member of the Organization for Economic
Cooperation and Development, (e) any savings bank, savings and loan association or similar
financial institution and, unless a Default shall have occurred and be continuing, approved by
Borrower (such approval not to be unreasonably withheld or delayed) which (A) has a net worth of
$500,000,000 or more, (B) is engaged in the business of lending money and extending credit under
credit facilities substantially similar to those extended under this Agreement and (C) is
operationally and procedurally able to meet the obligations of a Lender hereunder to the same
degree as a commercial bank, and (f) any other financial institution (including a mutual fund or
other fund) approved by the Administrative Agent and, unless a Default shall have occurred and be
continuing,
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Borrower (such approval not to be unreasonably withheld or delayed) having total assets
of $500,000,000 or more which meets the requirements set forth in subclauses (B) and
(C) of clause (e) above; provided that each Eligible Assignee must either
(a) be organized under the Laws of the United States of America, any State thereof or the District
of Columbia or (b) be organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a political subdivision of
such a country, and (i) act hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on interest.
“Eligible Borrowing Base Property” shall mean (i) any Project which does not meet the criteria
below but is approved by the Required Lenders in their sole discretion or (ii) any Project which
meets the following criteria:
(a) Such Project must be wholly-owned in fee simple or leased pursuant to a Qualifying
Ground Lease by a Wholly-Owned Subsidiary of Borrower that is a Subsidiary Guarantor or will
be added as a Subsidiary Guarantor when such Project becomes a Qualifying Borrowing Base
Property.
(b) Such Project must be an industrial property consisting of one of the following
property types: warehouse, distribution, flex (light manufacturing or research and
development) or trans-shipment.
(c) Such Project must be located in one of the following markets: Los Angeles Area,
San Francisco Bay Area, Seattle, Northern New Jersey/New York City, Washington
D.C./Baltimore, or Miami Area (the “Borrower’s Target Geographic Markets”).
(d) Such Project must be free of any Liens, mortgages and pledges (other than those
described in clauses (i) through (iv) of Section 6.16).
(e) Such Project may not be subject to any material environmental or structural issues,
or any other environmental issues which have not been insured over, (such insurance to be
subject to the reasonable determination of the Administrative Agent).
(f) The property management agreement for such Project must be approved by the
Administrative Agent or shall be consistent with the most-recent form thereof approved by
the Administrative Agent.
“Entity Acquisition” means any transaction, or any series of related transactions, consummated
on or after the Agreement Execution Date, by which any of Parent Guarantor, Borrower or any of
Borrower’s Subsidiaries (i) acquires any going business or all or substantially all of the assets
of any firm, corporation or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of votes) of the securities
of a corporation which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding ownership interests of a partnership, limited
liability company or other entity.
“Environmental Laws” means any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
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liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to Borrower or any Subsidiary or any of their respective assets or
Projects.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any rule or regulation issued thereunder.
“Excluded Taxes” means, in the case of each Lender or applicable Lending Installation and the
Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it,
by any jurisdiction with taxing authority over the Lender.
“Executive Order” is defined in Section 5.28.
“Facility Letter of Credit” means a Letter of Credit issued pursuant to Article IIA of
this Agreement, including those Letters of Credit, if any, listed on Schedule 8 attached
hereto which were issued under the Original Credit Agreement and remain outstanding on the
Agreement Execution Date.
“Facility Letter of Credit Fee” is defined in Section 2A.8.
“Facility Letter of Credit Obligations” means, as at the time of determination thereof, all
liabilities, whether actual or contingent, of Borrower with respect to Facility Letters of Credit,
including the sum of (a) the Reimbursement Obligations and (b) the aggregate undrawn face amount of
the then outstanding Facility Letters of Credit.
“Facility Letter of Credit Sublimit” means $10,000,000.
“Facility Obligations” means all Obligations other than the Related Swap Obligations.
“Facility Termination Date” means March 22, 2013.
“Federal Funds Effective Rate” shall mean, for any day, the rate per annum (rounded upward to
the nearest one one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank
of Cleveland on such day as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as computed and
announced by such Federal Reserve Bank in substantially the same manner as such Federal Reserve
Bank computes and announces the weighted average it refers to as the “Federal Funds Effective
Rate.”
“Fee Letter” is defined in Section 2.6.
“Floor Base Rate” means, for any day, a rate of interest per annum equal to the highest of (i)
the sum of the Prime Rate for such day plus 1% per annum, (ii) the sum of the Federal Funds
Effective Rate for such day plus 1/2% per annum and (iii) the LIBOR Rate (which includes
the LIBOR Applicable Margin) that would apply if such day were the first day of a LIBOR Interest
Period of one month.
“Funded Percentage” means, with respect to any Lender at any time, a percentage equal to a
fraction the numerator of which is the amount actually disbursed and outstanding to Borrower by
such Lender at such time and the denominator of which is the total amount disbursed and outstanding
to Borrower by all of the Lenders at such time.
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“Funds From Operations” shall have the meaning determined from time to time by the National
Association of Real Estate Investment Trusts to be the meaning most commonly used by its members,
but in no event shall Funds From Operations for any period be reduced on account of any deduction
or amortization of acquisition costs incurred with respect to Projects acquired by Borrower or
another member of the Consolidated Group.
“GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, applied in a manner consistent with that used in preparing the financial
statements referred to in Section 6.1.
“Governmental Authority” means any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Guarantee Obligation” means, as to any Person (the “guaranteeing person”), any
obligation (determined without duplication) of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any Letter of Credit) to induce the creation of
which the guaranteeing person has issued a reimbursement, counter-indemnity or similar obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business or environmental or similar
indemnities or customary so-called non-recourse carveout guarantees. 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 Borrower in good faith.
“Implied Facility Debt Service” means, as of any date, an imputed annual amount of principal
and interest that would be due on the then-current Outstanding Facility Amount if such Outstanding
Facility Amount were a fully amortizing loan with equal monthly payments of principal and interest
over a period of thirty years at a per annum interest rate equal to the greater of (a) 7.00% and
(b) the then-current weighted daily average interest rate applicable to all Advances outstanding
hereunder on such date.
“Indebtedness” of any Person at any date means without duplication all obligations, contingent
or otherwise, which should be classified or the obligor’s balance sheet as liabilities, or to which
reference should be made by footnotes thereto, all in accordance with GAAP, including, in any
event, the sum of (without double-counting), (i) all accounts payable of such obligor on such date,
and (ii) all Indebtedness outstanding on such date, in each case whether Recourse,
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Indebtedness, Non-Recourse Indebtedness or contingent, provided, however, that amounts not
drawn as Loans hereunder on such date shall not be included in calculating Consolidated Total
Indebtedness, and provided, further, that (without double-counting), each of the following shall be
included in Indebtedness: (a) 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); (b) all reimbursement obligations of such Person for letters of credit and
other contingent liabilities (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); (c) all amounts of bonds posted
by such obligor guaranteeing performance or payment obligations; (d) all lease obligations (under
Capitalized Leases) (e) all liabilities of such obligor as a partner, member or the like for
liabilities (whether such liabilities are Recourse, Indebtedness, Non-Recourse Indebtedness or
contingent obligations of the applicable partnership or other Person) of Investment Affiliates or
other Person in which any of them have an equity interest, which liabilities are for borrowed money
or any of the matters listed in clauses (a), (b), (c) or (d) above; (f) any Net Xxxx-to-Market
Exposure and (g) all liabilities secured by any lien (other than liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof.. For purposes hereof, the amount of borrowed money shall
equal the sum of (1) the amount of borrowed money as determined in accordance with GAAP
plus (2) the amount of those contingent liabilities for borrowed money set forth in
subsections (a) through (d) above, but shall exclude any adjustment for so-called “straight-line
interest accounting”.
“Initial Borrowing Base Properties” is defined in Section 2.22.
“Intellectual Property” is defined in Section 5.21.
“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), deposit account or contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock, partnership interests, notes,
debentures or other securities of any other Person made by such Person.
“Investment Affiliate” means any Person in which the Consolidated Group, directly or
indirectly, holds an ownership interest whose financial results are not consolidated under GAAP
with the financial results of the Consolidated Group.
“Issuance Date” is defined in Section 2A.4(a)(2).
“Issuance Notice” is defined in Section 2A.4(c).
“Issuing Bank” means, with respect to each Facility Letter of Credit, the Lender which issues
such Facility Letter of Credit. KeyBank shall be the sole Issuing Bank.
“Leased Rate” means with respect to a Project at any time, the ratio, expressed as
a percentage, of (a) the net rentable square footage of such Project leased by tenants that are not
Affiliates of the Borrower (unless approved by the Required Lenders), pursuant to Leases in place
of the time of the acquisition of such Project by Borrower or its Subsidiary or entered into
thereafter in accordance with the provisions of this Agreement as to which no monetary default
exists and has
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continued unremedied for 60 or more days to (b) the aggregate net rentable square footage of
such Project.
“Leases” shall mean, collectively, all leases, subleases and similar occupancy agreements
affecting any Borrowing Base Property, or any part thereof, now existing or hereafter executed and
all material amendments, material modifications or supplements thereto.
“Lenders” means the lending institutions listed on the signature pages of this Agreement,
their respective successors and assigns, any other lending institutions that subsequently become
parties to this Agreement.
“Lending Installation” means, with respect to a Lender, any office, branch, subsidiary or
affiliate of such Lender.
“Letter of Credit” of a Person means a letter of credit or similar instrument which is issued
upon the application of such Person or upon which such Person is an account party or for which such
Person is in any way liable.
“Letter of Credit Collateral Account” is defined in Section 2A.9.
“Letter of Credit Request” is defined in Section 2A.4(a).
“Leverage Ratio” means, as of any date, the ratio of Consolidated Total Indebtedness to
Consolidated Gross Asset Value.
“LIBOR Advance” means an Advance that bears interest at the LIBOR Rate.
“LIBOR Applicable Margin” means, as of any date with respect to any LIBOR Interest Period, the
applicable per annum amount then in effect pursuant to Section 2.3 hereof.
“LIBOR Base Rate” means, the rate (rounded upwards to the nearest 1/1000th) with
respect to a LIBOR Advance for the relevant LIBOR Interest Period, the applicable British Bankers’
Association LIBOR rate for deposits in U.S. dollars as reported by any generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days prior to the first
day of such LIBOR Interest Period, and having a maturity equal to such LIBOR Interest Period,
provided that, if no such British Bankers’ Association LIBOR rate is available to the
Administrative Agent, the applicable LIBOR Base Rate for the relevant LIBOR Interest Period shall
instead be the rate determined by the Administrative Agent to be the rate at which KeyBank or one
of its Affiliate banks offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such LIBOR Interest Period, in the approximate amount of KeyBank’s relevant LIBOR Loan
and having a maturity equal to such LIBOR Interest Period.
“LIBOR Interest Period” means, with respect to each amount bearing interest at a LIBOR based
rate, a period of one, two or three months, commencing on a Business Day, as selected by Borrower;
provided, however, that (i) any LIBOR Interest Period which would otherwise end on a day which is
not a Business Day shall continue to and end on the next succeeding Business Day, unless the result
would be that such LIBOR Interest Period would be extended to the next succeeding calendar month,
in which case such LIBOR Interest Period shall end on the next preceding Business Day and (ii) any
LIBOR Interest Period which begins on a day for which there is no numerically
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corresponding date in the calendar month in which such LIBOR Interest Period would otherwise
end shall instead end on the last Business Day of such calendar month.
“LIBOR Loan” means a Loan which bears interest at a LIBOR Rate.
“LIBOR Rate” means, for any LIBOR Interest Period, the sum of (A) the LIBOR Base Rate
applicable thereto and (B) the LIBOR Applicable Margin.
“Lien” means any lien (statutory or other), mortgage, pledge, encumbrance, priority or any
other type of security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any Capitalized Lease).
“Loan” means, with respect to a Lender, such Lender’s portion of any Advance.
“Loan Documents” means this Agreement, the Notes, the Parent Guaranty, the Subsidiary
Guaranty, the Collateral Assignment and any other document from time to time evidencing or securing
indebtedness incurred by Borrower under this Agreement, as any of the foregoing may be amended or
modified from time to time.
“Loan Parties” means, collectively, Borrower, the Parent Guaranty, the Subsidiary Guarantors
and any other party which executes and delivers, or joins in, the Collateral Assignment or any
future Collateral Assignment as provided herein.
“Management Fees” means, with respect to each Project for any period, an amount equal to (i)
the actual management fees payable with respect thereto for such period if the property manager of
such Project is a third party and not Borrower or an Affiliate of Borrower or (B) three percent
(3.0%) of the aggregate net and other revenue due under the Leases at such Project for such period
if the property manager is the Borrower or an Affiliate of Borrower.
“Material Adverse Effect” means, in the Administrative Agent’s reasonable discretion, a
material adverse effect on (i) the business, Property or condition (financial or otherwise) of
Borrower and its Subsidiaries taken as a whole, (ii) the ability of Borrower to perform its
obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan
Documents.
“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or
any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
“Maximum Legal Rate” means the maximum nonusurious interest rate, if any, that at any time or
from time to time may be contracted for, taken, reserved, charged or received on the indebtedness
evidenced by the Note and as provided for herein or in the Note or other Loan Documents, under the
laws of such state or states whose laws are held by any court of competent jurisdiction to govern
the interest rate provisions of the Loan.
“Moody’s” means Xxxxx’x Investors Service, Inc. and its successors.
“Multiemployer Plan” means a Plan maintained pursuant to a collective bargaining agreement or
any other arrangement to which Borrower or any member of the Controlled Group is a party to which
more than one employer is obligated to make contributions.
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“Negative Pledge” means, with respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document) which prohibits the creation or assumption
of any Lien on such asset as security for Indebtedness of the Person owning such asset or any other
Person; provided, however, that an agreement that conditions a Person’s ability to encumber its
assets upon the maintenance of one or more specified ratios that limit such Person’s ability to
encumber its assets but that do not generally prohibit the encumbrance of its assets, or the
encumbrance of specific assets, shall not constitute a Negative Pledge.
“Net Operating Income” means, with respect to any Project for any period, property rental and
other income attributable to such Project accruing for such period minus all expenses and
other proper charges incurred in connection with the operation of such Project (including, without
limitation, real estate taxes, Management Fees, payments under ground leases and bad debt expenses)
during such period; but, in any case, before payment of or provision for debt service charges for
such period, income taxes for such period, capital expenses for such period, and depreciation,
amortization, and other non-cash expenses for such period, all as determined in accordance with
GAAP (except that (a) any rent leveling adjustments and (b) any SFAS 141 amortization shall be
excluded from rental income).
“Non-Recourse Indebtedness” means any Indebtedness with respect to which the liability of the
obligor is limited to the obligor’s interest in specified assets securing such Indebtedness,
subject to customary limited exceptions for certain acts or types of liability.
“Non-U.S. Lender” is defined in Section 3.5(iv).
“Note” means a promissory note, in substantially the form of Exhibit B hereto, duly
executed by Borrower and payable to the order of a Lender in the amount of its Commitment,
including any amendment, modification, renewal or replacement of such promissory note.
“Notice of Assignment” is defined in Section 12.3(ii).
“Obligations” means the Advances, the Facility Letter of Credit Obligations, the Related Swap
Obligations and all accrued and unpaid fees and all other obligations of Borrower to the
Administrative Agent or the Lenders arising under this Agreement or any of the other Loan
Documents.
“Occupancy Percentage” means, as of any date, with respect to any Project or group of
Projects, the percentage of the total rentable area of such Project or Projects that is then
demised under a Lease to tenants who are not an Affiliate of the Borrower and who took initial
occupancy of their demised spaces under such Leases (even if any such space is then vacant), but
excluding from such calculation space demised to any tenant who is then either (i) the subject of a
voluntary or involuntary proceeding for relief under the Bankruptcy Code or any state bankruptcy
codes or insolvency laws, unless such tenant has assumed such Lease and provided adequate
assurances of future performance, all as may be required in such proceeding, or (ii) more than
sixty (60) days delinquent in the payment of any installment of base rent due under such tenant’s
Lease.
“Original Credit Agreement” is defined in the Recitals hereto.
“Other Taxes” is defined in Section 3.5(ii).
“Outstanding Facility Amount” means, at any time, the sum of all then outstanding Advances and
Facility Letter of Credit Obligations.
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“Parent Guarantor” means Terreno Realty Corporation, a Maryland corporation organized under
the laws of the State of Delaware, and its successors and assigns.
“Parent Guaranty” means the guaranty to be executed and delivered by the Parent Guarantor
substantially in the form of Exhibit G, as the same may be amended, supplemented or
otherwise modified from time to time.
“Participants” is defined in Section 12.2(i).
“Payment Date” means, with respect to the payment of interest accrued on any Advance, the
first day of each calendar month.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Percentage” means for each Lender the ratio that such Lender’s Commitment bears to the
Aggregate Commitment, expressed as a percentage.
“Permitted Acquisitions” are defined in Section 6.15.
“Permitted Liens” are defined in Section 6.16.
“Person” means any natural person, corporation, firm, joint venture, partnership, association,
enterprise, trust or other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code as to which Borrower or any member
of the Controlled Group may have any liability.
“Pledged Equity Interests” means, as of any date, collectively, 100% of the applicable legal,
beneficial ownership interests in each Subsidiary Guarantor which owns one or more of the
then-current Borrowing Base Properties, which as of the Agreement Execution Date, consist of the
ownership interests shown on Schedule 7 attached hereto, together with 100% of all other
Wholly-Owned Subsidiaries of Borrower added as Subsidiary Guarantors hereafter, as pledged under
the Collateral Assignment from time to time, less any such ownership interests which have been
released from Collateral pursuant to Section 2.22(iii).
“Preferred Dividends” means, for any period, with respect to any entity, dividends or other
distributions which are payable to holders of any ownership interests in such entity which entitle
the holders of such ownership interests to be paid on a preferred basis prior to dividends or other
distributions to the holders of other types of ownership interests in such entity.
“Prime Rate” means a rate per annum equal to the prime rate of interest publicly announced
from time to time by KeyBank or its parent as its prime rate (which is not necessarily the lowest
rate charged to any customer), changing when and as said prime rate changes. In the event that
there is a successor to the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate, then the term “Prime Rate” as used in this Agreement shall
mean the prime rate, base rate or other analogous rate of the new Administrative Agent.
“Prohibited Person” is defined in Section 5.28.
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“Project” means any real estate asset operated or intended to be operated as an industrial
property.
“Property” of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“Proposed Borrowing Base Property” is defined in Section 2.22.
“Qualifying Borrowing Base Property” means the Initial Borrowing Base Properties and any
Eligible Borrowing Base Property which, as of any date of determination, has been approved by the
Required Lenders for inclusion in the Borrowing Base Pool as provided in Section 2.22(ii),
provided that such Eligible Borrowing Base Property: (a) is not, nor is any of Borrower’s direct or
indirect ownership interests in the Subsidiary Guarantor owning such Project, subject to any
Negative Pledge or any Lien other than Permitted Liens set forth in Sections 6.16(i)
through 6.16(iv); (b) has an Occupancy Percentage of at least 65% at the time it is added
to the Borrowing Base Pool, and (c) is then in compliance with all of the representations and
warranties made by Borrower under Section 5.20 with respect to such Eligible Borrowing Base
Property. Notwithstanding the foregoing, the Warm Springs Project in Fremont, CA has been included
as an Initial Borrowing Base Property on the condition that the Borrowing Base Value with respect
to such Initial Borrowing Base Property shall be reduced as provided in the definition of
“Borrowing Base Value” until such Borrowing Base Property meets the minimum 65% Occupancy
Percentage set forth in clause (b) above.
“Qualified Ground Lease” means a ground lease that has (i) a remaining term of at least
twenty-five (25) years including, for this purpose, any renewal option exercisable at the sole
option of the ground lessee thereunder, with no veto or approval rights by the ground lessor or any
lender to such ground lessor, (ii) can be mortgaged without the consent of the ground lessor
thereunder, (iii) contains customary leasehold mortgagee protection rights reasonably satisfactory
to the Administrative Agent; (iv) can be transferred without the consent of the ground lessor
thereunder (or if consent of such ground lessor is required, such consent is subject to either an
express reasonableness standard or an objective financial standard for the transferee that is
reasonably satisfactory to the Administrative Agent); and (v) 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).
“Recourse Indebtedness” means any Indebtedness of Borrower or any other member of the
Consolidated Group with respect to which the liability of the obligor is not limited to the
obligor’s interest in specified assets securing such Indebtedness, subject to customary limited
exceptions for certain acts or types of liability.
“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.
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“Reimbursement Obligations” means at any time, the aggregate of the obligations of Borrower to
the Lenders, the Issuing Bank and the Administrative Agent in respect of all unreimbursed payments
or disbursements made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
“Related Swap Obligations” means, as of any date, all of the obligations of Borrower arising
under any then outstanding Swap Contracts entered into between Borrower and any Lender or Affiliate
of any Lender.
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Plan, excluding, however, such events as
to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice requirement in
accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
“Required Lenders” means Lenders in the aggregate having at least 66 2/3% of the Aggregate
Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding at
least 66 2/3% of the aggregate unpaid principal amount of the outstanding Advances and Facility
Letter of Credit Obligations, provided that (i) the Commitments of, and Advances made by, any
Lender which is a Defaulting Lender shall be excluded from the calculations of the Aggregate
Commitment and aggregate Advances and Facility Letter of Credit Obligations for such purposes
during the period that such Lender is a Defaulting Lender, and (ii) at such times as there are less
than four (4) Lenders hereunder, the “Required Lenders” must also include at least two of such
Lenders even if one Lender holds more than 66 2/3% of the Aggregate Commitment or aggregate
Advances and Facility Letter of Credit Obligations.
“Section” means a numbered section of this Agreement, unless another document is specifically
referenced.
“Secured Indebtedness” means any Indebtedness of Borrower or any other member of the
Consolidated Group which is secured by a Lien on a Project, any ownership interests in any Person
or any other assets which had, in the aggregate, a value in excess of the amount of such
Indebtedness at the time such Indebtedness was incurred.
“Security Documents” means the Collateral Assignment (and each joinder therein and each
additional Collateral Assignment subsequently delivered pursuant to this Agreement) and any further
collateral assignments to the Administrative Agent for the benefit of the Lenders, including,
without limitation, any UCC-1 financing statements delivered or authorized to be filed by the
Administrative Agent in connection therewith.
“Single Employer Plan” means a Plan maintained by Borrower or any member of the Controlled
Group for employees of Borrower or any member of the Controlled Group.
“S&P” means Standard & Poor’s Ratings Group and its successors.
“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, association, joint venture or similar business
organization
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more than 50% of the ownership interests having ordinary voting power of which shall at the
time be so owned or controlled. Unless otherwise expressly provided, all references herein to a
“Subsidiary” shall mean a Subsidiary of Borrower.
“Subsidiary Guarantor” means each Wholly-Owned Subsidiary of Borrower which owns a Borrowing
Base Property and therefore is required to execute a Subsidiary Guaranty pursuant to Section
6.13.
“Subsidiary Guaranty” means the guaranty to be executed and delivered by those Subsidiaries of
Borrower listed on Schedule 6 and such other Wholly-Owned Subsidiaries as may hereafter be
obligated to join in such guaranty as provided in Section 6.13, substantially in the form
of Exhibit F, as the same may be amended, supplemented or otherwise modified from time to
time.
“Substantial Portion” means, with respect to the Property of Borrower and its Subsidiaries,
Property which represents more than 10% of then-current Consolidated Gross Asset Value.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).
“Swingline Advances” means, as of any date, collectively, all Swingline Loans then outstanding
under this Facility.
“Swingline Commitment” means the obligation of the Swingline Lender to make Swingline Loans
not exceeding $10,000,000, which is included in, and is not in addition to, the Swingline Lender’s
total Commitment hereunder.
“Swingline Lender” shall mean KeyBank National Association, in its capacity as a Lender, and
at the option of a new Administrative Agent, any successor Administrative Agent.
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“Swingline Loan” means a loan made by the Swingline Lender pursuant to Section
2.16 hereof.
“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.
“Transferee” is defined in Section 12.4.
“Type” means, with respect to any Advance, its nature as a Base Rate Advance or LIBOR Advance.
“Unfunded Liabilities” means the amount (if any) by which the present value of all vested
nonforfeitable benefits under all Single Employer Plans exceeds the fair market value of all such
Plan assets allocable to such benefits, all determined as of the then most recent valuation date
for such Plans.
“Unimproved Land” means, as of any date, any land which (i) is not appropriately zoned for
industrial development, (ii) does not have access to all necessary utilities or (iii) does not have
access to publicly dedicated streets, unless such land has been designated in writing by Borrower
in a certificate delivered to the Administrative Agent as land that is reasonably expected to
satisfy all such criteria within twelve (12) months after such date, but excluding in any event any
land which qualifies as a Drop Lot.
“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 all Consolidated Total Indebtedness that is not Secured
Indebtedness.
“Unused Fee” is defined in Section 2.5.
“Unused Fee Percentage” means, with respect to any calendar quarter, (i) 0.35% per annum, if
the daily average of the sum of the Advances and Facility Letter of Credit Obligations outstanding
during such quarter is 50% or more of the daily average Aggregate Commitment during such quarter or
(ii) 0.50% per annum if the average of the sum of the Advances and Facility Letter of Credit
Obligations outstanding during such quarter is less than 50% of the daily average Aggregate
Commitment during such quarter.
“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, 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.
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ARTICLE II.
THE CREDIT
2.1. Generally. Subject to the terms and conditions of this Agreement, Lenders
severally agree to make Advances through the Administrative Agent to Borrower from time to time
prior to the Facility Termination Date, and to support the issuance of the Facility Letters of
Credit under Article IIA of this Agreement, provided that the making of any such
Advance or the issuance of any such Facility Letter of Credit will not:
(i) cause the then-current Outstanding Facility Amount to exceed the then-current
Aggregate Commitment; or
(ii) cause the then-current Outstanding Facility Amount to exceed fifty percent (50%)
of the then-current Borrowing Base Value; or
(iii) cause the then-current outstanding Swingline Advances to exceed the Swingline
Commitment; or
(iv) cause the then outstanding Facility Letters of Credit Obligations to exceed the
Facility Letter of Credit Sublimit.
The Advances may be Swingline Advances or ratable Base Rate Advances and ratable LIBOR Advances.
Each Lender shall fund its Percentage of each such Advance (other than a Swingline Advance which
shall be funded solely by the Swingline Lender) and no Lender will be required to fund any amounts
which, when aggregated with such Lender’s Percentage of all other Advances then outstanding and of
all Facility Letter of Credit Obligations, would exceed such Lender’s then-current Commitment.
This facility (“Facility”) is a revolving credit facility and, subject to the provisions of
this Agreement, Borrower may request Advances hereunder, repay such Advances and reborrow Advances
at any time prior to the Facility Termination Date.
2.2. Termination or Increase in Aggregate Commitment. Borrower shall have the right,
upon at least three (3) business days notice, to terminate or cancel, in whole or in part, the
unused portion of the Aggregate Commitment in excess of the Outstanding Facility Amount, provided
that each partial reduction shall be in a minimum amount of $1,000,000 or any whole multiple of
$250,000 in excess thereof. Once terminated or reduced, the Aggregate Commitment may not be
reinstated or increased thereafter. Provided Borrower has not exercised any right to terminate or
reduce the Aggregate Commitment, Borrower shall also have the right from time to time, provided no
Default or Unmatured Default has occurred and is then continuing, to increase the Aggregate
Commitment up to a maximum of $150,000,000 by either adding new lenders as Lenders (subject to the
Administrative Agent’s prior written approval of the identity of such new lenders) or obtaining the
agreement, which shall be at such Lender’s or Lenders’ sole discretion, of one or more of the then
current Lenders to increase its or their Commitments. On the effective date of any such increase,
Borrower shall pay to the Administrative Agent any amounts due to it under the Fee Letter and to
each new lender or then-current Lender providing such additional Commitment the up-front fee agreed
to between Borrower and such party. Such increases shall be evidenced by the execution and
delivery of an Amendment Regarding Increase in the form of Exhibit A attached hereto by
Borrower, the Administrative Agent and the new lender or existing Lender providing such additional
Commitment, a copy of which shall be forwarded to each Lender by the Administrative Agent promptly
after execution thereof. On the effective date of each such increase in the Xxxxxxxxx
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Xxxxxxxxxx, Xxxxxxxx and the Administrative Agent shall cause the new or existing Lenders
providing such increase to hold its or their Percentage of all Advances outstanding at the close of
business on such day, by funding more than its or their Percentage of new Advances made on such
date or by purchasing shares of outstanding Loans held by the other Lenders or by a combination
thereof. The Lenders agree to cooperate in any required sale and purchase of outstanding Advances
to achieve such result. In no event shall the Aggregate Commitment exceed $150,000,000 without the
approval of all of the Lenders.
2.3. Applicable Margins. The interest due hereunder with respect to the Advances
shall vary from time to time and shall be determined by reference to the Type of Advance and the
then-current Leverage Ratio. Any such change in the Applicable Margin shall be made on the fifth
(5th) day subsequent to the date on which the Administrative Agent receives a compliance
certificate pursuant to Section 6.1(iv) with respect to the preceding fiscal quarter of
Borrower, provided that the Administrative Agent does not object to the information provided in
such certificate. Such changes shall be given prospective effect only, and no recalculation shall
be done with respect to interest or Letter of Credit Fees accrued prior to the date of such change
in the Applicable Margin. If any such compliance certificate shall later be determined to be
incorrect and as a result a higher Applicable Margin should have been in effect for any period,
Borrower shall pay to the Administrative Agent for the benefit of the Lenders all additional
interest and fees which would have accrued if the original compliance certificate had been correct,
as shown on an invoice to be prepared by the Administrative Agent and delivered to Borrower, on the
next Payment Date following delivery of such invoice. The per annum Applicable Margins that will be
either added to the Floor Base Rate to determine the Base Rate or added to LIBOR Base Rate (as
adjusted for any Reserve Requirement) to determine the LIBOR Rate for any LIBOR Interest Period
shall be determined as follows:
| Base Rate | ||||||||
| Leverage Ratio | LIBOR Applicable Margin | Applicable Margin | ||||||
> 55% but ≤ 60%
|
4.25 | % | 0 | |||||
> 50% but ≤ 55%
|
3.75 | % | 0 | |||||
> 45% but ≤ 50%
|
3.25 | % | 0 | |||||
≤45%
|
3.00 | % | 0 | |||||
2.4. Final Principal Payment. Any outstanding Advances and all other unpaid
Obligations shall be paid in full by Borrower on the Facility Termination Date.
2.5. Unused Fee. Borrower agrees to pay to the Administrative Agent for the account
of each Lender an unused facility fee (the “Unused Fee”) equal to an aggregate amount
computed on a daily basis for each calendar quarter by multiplying the Unused Fee Percentage
applicable to such calendar quarter, calculated as a per diem rate, times the excess of the
Aggregate Commitment over the Outstanding Facility Amount on each day of such calendar quarter.
The Unused Fee shall be payable quarterly in arrears on the third (3rd) Business Day
after the last day of each calendar quarter and upon any termination of the Aggregate Commitment in
its entirety.
2.6. Other Fees. Borrower agrees to pay all fees payable to the Administrative Agent
pursuant to Borrower’s letter agreement with the Administrative Agent dated as of December 22, 2009
(the “Fee Letter”).
2.7. Minimum Amount of Each Advance. Each Advance shall be in the minimum amount of
$1,000,000; provided, however, that any Base Rate Advance may be in the amount of the unused
Aggregate Commitment.
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2.8. Principal Payments.
(a) Optional. Borrower may from time to time pay, without penalty or
premium, all or any part of outstanding Base Rate Advances on not less than one (1)
Business Day prior notice to the Administrative Agent. A LIBOR Advance may be paid
on the last day of the LIBOR applicable LIBOR Interest Period or, if and only if
Borrower pays any amounts due to the Lenders under Section 3.4 as a result
of such prepayment, on a day prior to such last day.
(b) Mandatory. Borrower shall make mandatory partial principal
payments from time to time if, due to any reduction in the Borrowing Base Value or
in the Borrowing Base Debt Service Coverage, whether by a Borrowing Base Property
failing to continue to satisfy the requirement for qualification as a Borrowing Base
Property or by a reduction in the Borrowing Base Value or the Adjusted Borrowing
Base NOI attributable to any Qualifying Borrowing Base Property, a violation of the
covenants set forth in clauses (i) and (ii) of Section 6.21 shall occur.
Such principal payments shall be in the amount needed to eliminate such violation.
Such mandatory principal payments shall be due and payable (i) in the case of any
reduction due to (a) reduction in the Borrowing Base NOI attributable to a Borrowing
Base Property or a violation of one of the limitations set forth in Section
2.22(i), ten (10) Business Days after delivery of the quarterly financial
statements and Compliance Certificate under Section 6.1 evidencing such
reduction or (ii) in all other cases, ten (10) Business Days after Borrower’s
receipt of notice from the Administrative Agent of such failure to satisfy a
requirement for qualification as a Borrowing Base Property.
2.9. Method of Selecting Types and Interest Periods for New Advances. Each Advance
hereunder shall consist of Loans made from the several Lenders ratably in proportion to the ratio
their respective Commitments bear to the Aggregate Commitment, except for Swingline Loans which
shall be made by the Swingline Lender in accordance with Section 2.16. Borrower shall
select the Type of Advance and, in the case of each LIBOR Advance, the LIBOR Interest Period
applicable thereto from time to time. Borrower shall give the Administrative Agent irrevocable
notice (a “Borrowing Notice”) in the form attached as Exhibit I (i) not later than
3:00 p.m. Cleveland time on the Business Day immediately preceding the Borrowing Date of each Base
Rate Advance (other than Swingline Advances), (ii) not later than 10:00 a.m. Cleveland time, at
least three (3) Business Days before the Borrowing Date for each LIBOR Advance, and (iii) not later
than noon Cleveland, Ohio time on the same day as the Borrowing Date for each Swingline Advance,
which 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 LIBOR Advance, the LIBOR Interest Period applicable thereto.
The Administrative Agent shall promptly give each Lender notice of the contents of each Borrowing
Notice received from Borrower. Each Lender shall make available its Loan or Loans, in funds
immediately available in Cleveland to the Administrative Agent at its address specified pursuant to
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Article XIII on each Borrowing Date not later than (i) 2:00 p.m. (Cleveland time), in the
case of Swingline Advances, or (ii) noon (Cleveland time) in the case of all other Advances. The
Administrative Agent will make the funds so received from the Lenders available to Borrower at the
Administrative Agent’s aforesaid address.
No LIBOR Interest Period may end after the Facility Termination Date and, unless the Lenders
otherwise agree in writing, in no event may there be more than five (5) different LIBOR Interest
Periods for LIBOR Advances outstanding at any one time.
2.10. Conversion and Continuation of Outstanding Advances. Base Rate Advances shall
continue as Base Rate Advances unless and until such Base Rate Advances are converted into LIBOR
Advances. Each LIBOR Advance shall continue as a LIBOR Advance until the end of the then
applicable LIBOR Interest Period therefor, at which time such LIBOR Advance shall be automatically
converted into a Base Rate Advance unless Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end of such LIBOR Interest Period, such
LIBOR Advance either continue as a LIBOR Advance for the same or another Interest Period or be
converted to an Advance of another Type. Subject to the terms of Section 2.7, Borrower may
elect from time to time to convert all or any part of an Advance of any Type into any other Type or
Types of Advances; provided that any conversion of any LIBOR Advance shall be made on, and only on,
the last day of the LIBOR Interest Period applicable thereto. Borrower shall give the
Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each
conversion of an Advance to a LIBOR Advance or continuation of a LIBOR Advance not later than 10:00
a.m. (Cleveland time), at least three Business Days, in the case of a conversion into or
continuation of a LIBOR Advance, prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date which shall be a Business Day, of such conversion or
continuation;
(ii) the aggregate amount and Type of the Advance which is to be converted or
continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance is to be converted
or continued and, in the case of a conversion into or continuation of a LIBOR Advance, the
duration of the LIBOR Interest Period applicable thereto.
2.11. Changes in Interest Rate, Etc. Each Base 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 LIBOR Advance into a Base Rate Advance pursuant to Section 2.10
to but excluding the date it becomes due or is converted into a LIBOR Advance pursuant to
Section 2.10 hereof, at a rate per annum equal to the Base Rate for such day. Changes in
the rate of interest on that portion of any Advance maintained as a Base Rate Advance will take
effect simultaneously with each change in the Base Rate. Each LIBOR Advance shall bear interest
from and including the first day of the LIBOR Interest Period applicable thereto to (but not
including) the last day of such LIBOR Interest Period at the interest rate determined as applicable
to such LIBOR Advance.
2.12. Rates Applicable After Default. Notwithstanding anything to the contrary
contained in Section 2.9 or 2.10, during the continuance of a Default the Required
Lenders may, at their option, by notice to Borrower (which notice may be revoked at the option of
the Required Lenders
24
notwithstanding any provision of Section 8.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued as a
LIBOR Rate Advance. During the continuance of a Default the Required Lenders may, at their option,
by notice to Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to
changes in interest rates), declare that (i) each LIBOR Advance shall bear interest for the
remainder of the applicable LIBOR Interest Period at the rate otherwise applicable to such LIBOR
Interest Period plus 3% per annum and (ii) each Base Rate Advance shall bear interest at a rate per
annum equal to the Base Rate otherwise applicable to the Base Rate Advance plus 3% per annum;
provided, however, that the Default Rate shall become applicable automatically if a Default occurs
under Section 7.1 or 7.2, unless waived by the Required Lenders.
2.13. Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent’s address specified pursuant to Article XIII, or at any
other Lending Installation of the Administrative Agent specified in writing by the Administrative
Agent to Borrower, by noon (local time) on the date when due and shall be applied ratably by the
Administrative Agent among the Lenders. As provided elsewhere herein, all Lenders’ interests in
the Advances and the Loan Documents shall be ratable undivided interests and none of such Lenders’
interests shall have priority over the others. Each payment delivered to the Administrative Agent
for the account of any Lender or amount to be applied or paid by the Administrative Agent to any
Lender shall be paid promptly (on the same day as received by the Administrative Agent if received
prior to noon (local time) on such day and otherwise on the next Business Day) by the
Administrative Agent to such Lender in the same type of funds that the Administrative Agent
received at its address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender. Payments received by
the Administrative Agent but not timely funded to the Lenders shall bear interest payable by the
Administrative Agent at the Federal Funds Effective Rate from the date due until the date paid.
The Administrative Agent is hereby authorized to charge the account of Borrower maintained with
KeyBank for each payment of principal, interest and fees as it becomes due hereunder.
2.14. Notes; Telephonic Notices. Each Lender is hereby authorized to record the
principal amount of each of its Loans and each repayment on the schedule attached to its Note,
provided, however, that the failure to so record shall not affect Borrower’s obligations under such
Note. Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic
notices made by any Authorized Officer. Borrower agrees to deliver promptly to the Administrative
Agent a written confirmation, if such confirmation is requested by the Administrative 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 Administrative Agent and the Lenders,
the records of the Administrative Agent and the Lenders shall govern absent manifest error. Upon a
Lender’s furnishing to Borrower an affidavit to such effect, if a Note is mutilated, destroyed,
lost or stolen, Borrower shall deliver to such Lender, in substitution therefore, a new note
containing the same terms and conditions as such Note being replaced.
2.15. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each
Advance shall be payable on each Payment Date, commencing with the first such date to occur after
the date hereof, at maturity, whether by acceleration or otherwise, and upon any termination of the
Aggregate Commitment in its entirety under Section 2.2 hereof. Interest, Unused Fees,
Facility Letter of Credit Fees and all other fees shall be calculated for actual days elapsed on
the basis of a 360-day year.
25
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 (local 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.
2.16. Swingline Advances. In addition to the other options available to Borrower
hereunder, the Swingline Commitment shall be available for Swingline Advances subject to the
following terms and conditions. Swingline Advances shall be made available for same day borrowings
provided that notice is given in accordance with Section 2.9 hereof. All Swingline
Advances shall bear interest at the Base Rate. In no event shall the Swingline Lender be required
to fund a Swingline Advance if it would increase the total aggregate outstanding Loans by Swingline
Lender hereunder plus its Percentage of Facility Letter of Credit Obligations to an amount in
excess of the Swingline Lender’s Commitment. No Swingline Advance may be made to repay a Swingline
Advance, but Borrower may repay Swingline Advances from subsequent pro rata Advances hereunder. On
the fifth (5th) day after such a Swingline Advance was made, if such Swingline Advance
has not been repaid by Borrower, each Lender irrevocably agrees to purchase its Percentage of any
Swingline Advance made by the Swingline Lender regardless of whether the conditions for
disbursement are satisfied at the time of such purchase, including the existence of an Unmatured
Default or Default hereunder provided that Swingline Lender did not have actual knowledge of such
Unmatured Default or Default at the time the Swingline Advance was made and provided further that
no Lender shall be required to have total outstanding Loans plus its Percentage of Facility Letters
of Credit exceed its Commitment. Such purchase shall take place on the date of the request by
Swingline Lender so long as such request is made by noon (Cleveland time), and otherwise on the
Business Day following such request. All requests for purchase shall be in writing. From and
after the date it is so purchased, each such Swingline Advance shall, to the extent purchased, (i)
be treated as a Loan made by the purchasing Lenders and not by the selling Lender for all purposes
under this Agreement and the payment of the purchase price by a Lender shall be deemed to be the
making of a Loan by such Lender and shall constitute outstanding principal under such Lender’s
Note, and (ii) shall no longer be considered a Swingline Advance except that all interest accruing
on or attributable to such Swingline Advance for the period prior to the date of such purchase
shall be paid when due by Borrower to the Administrative Agent for the benefit of the Swingline
Lender and all such amounts accruing on or attributable to such Loans for the period from and after
the date of such purchase shall be paid when due by Borrower to the Administrative Agent for the
benefit of the purchasing Lenders. If prior to purchasing its Percentage of a Swingline Advance
one of the events described in Section 7.7 shall have occurred and such event prevents the
consummation of the purchase contemplated by preceding provisions, each Lender will purchase an
undivided participating interest in the outstanding Swingline Advance in an amount equal to its
Percentage of such Swingline Advance. From and after the date of each Lender’s purchase of its
participating interest in a Swingline Advance, if the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s participating interest was outstanding and funded); provided,
however, that in the event that such payment was received by the Swingline Lender and is required
to be returned to Borrower, each Lender will return to the Swingline Lender any portion thereof
previously distributed by the Swingline Lender to it. If any Lender fails to so purchase its
Percentage of any Swingline Advance, such Lender shall be deemed to be a Defaulting Lender
hereunder.
26
2.17. Notification of Advances, Interest Rates and Prepayments. The Administrative
Agent will notify each Lender of the contents of each Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder not later than the close of business on
the Business Day such notice is received by the Administrative Agent. The Administrative Agent
will notify each Lender of the interest rate applicable to each LIBOR Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of each change in the
Floor Base Rate.
2.18. Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation from time to time.
All terms of this Agreement shall apply to any such Lending Installation and the Notes shall be
deemed held by each Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to Administrative Agent and Borrower, designate a Lending Installation
through which Loans will be made by it and for whose account Loan payments are to be made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless Borrower or a Lender,
as the case may be, notifies the Administrative Agent prior to the time at which it is scheduled to
make payment to the Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or Borrower, as the case may be, has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative
Agent, repay to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such amount was so made
available by the Administrative Agent until the date the Administrative Agent recovers such amount
at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day or (ii) in the case of payment by Borrower, the interest rate applicable to the
relevant Loan. If such Lender so repays such amount and interest thereon to the Administrative
Agent within one Business Day after such demand, all interest accruing on the Loan not funded by
such Lender during such period shall be payable to such Lender when received from Borrower.
2.20. Replacement of Lenders under Certain Circumstances. Borrower shall be permitted to
replace any Lender which (a) is not capable of receiving payments without any deduction or
withholding of United States federal income tax pursuant to Section 3.5, or (b) cannot
maintain its LIBOR Loans at a suitable Lending Installation pursuant to Section 3.3, with a
replacement bank or other financial institution; provided that (i) such replacement does
not conflict with any applicable legal or regulatory requirements affecting the Lenders, (ii) no
Default shall have occurred and be continuing at the time of such replacement, (iii) Borrower shall
repay (or the replacement bank or institution shall purchase), at par all Loans and other amounts
owing to such replaced Lender prior to the date of replacement, (iv) Borrower shall be liable to
such replaced Lender under Sections 3.4 and 3.6 if any LIBOR Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of the LIBOR Interest
Period relating thereto, (v) the replacement bank or institution, if not already a Lender, and the
terms and conditions of such replacement, shall be reasonably satisfactory to the Administrative
Agent, (vi) the replaced Lender shall be obligated to make such replacement in accordance with the
provisions of Section 12.3 (provided that Borrower shall be obligated to pay the processing
fee referred to therein), (vii) until such time as such replacement shall be consummated, Borrower
shall pay all additional amounts (if any) required pursuant to Section 3.5
27
and (viii) any such replacement shall not be deemed to be a waiver of any rights which Borrower, the
Administrative Agent or any other Lender shall have against the replaced Lender.
2.21. Usury. This Agreement and each Note are subject to the express condition that
at no time shall Borrower be obligated or required to pay interest on the principal balance of the
Loan at a rate which could subject any Lender to either civil or criminal liability as a result of
being in excess of the Maximum Legal Rate. If by the terms of this Agreement or the Loan
Documents, Borrower is at any time required or obligated to pay interest on the principal balance
due hereunder at a rate in excess of the Maximum Legal Rate, the interest rate or the Default Rate,
as the case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate and all
previous payments in excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All sums paid or agreed
to be paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall,
to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout
the full stated term of the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the Maximum Legal Rate of interest from time to time in effect
and applicable to the Loan for so long as the Loan is outstanding.
2.22. Borrowing Base and Collateral. The obligations of Borrower under the Loan
Documents shall be secured by a perfected first priority security interest to be held by the
Administrative Agent for the benefit of the Lenders in the Collateral, including the Pledged Equity
Interests with respect to those Qualifying Borrowing Base Properties which have been approved by
the Lenders and the Administrative Agent as of the Agreement Execution Date and are listed on
Schedule 7 attached hereto and made a part hereof (the “Initial Borrowing Base
Properties”) and such additional Pledged Equity Interests with respect to additional Qualifying
Borrowing Base Properties which may be included in Collateral hereafter as described below. Such
security interest shall be evidenced from time to time by the Collateral Assignment and the other
Security Documents. The Security Documents with respect to the Initial Borrowing Base Properties
shall be executed, delivered and filed not later than the Agreement Execution Date.
(i) Additional Requirements for Inclusion in Borrowing Base Value. The
following additional requirements shall apply to the Initial Qualifying Borrowing Base
Properties and to all subsequent Qualifying Borrowing Base Properties (except as noted to
the contrary):
(a) Occupancy Percentage. The aggregate Occupancy Percentage of all
Qualifying Borrowing Base Properties must equal or exceed 80.0% at all times. If
such minimum would be violated at any time, the Qualifying Borrowing Base Properties
with the lowest Occupancy Percentages shall be eliminated from inclusion in the
calculation of Borrowing Base Value, as necessary to achieve such minimum and such
eliminated Qualifying Borrowing Base Properties shall not be included in such
calculation until their inclusion will not cause the aggregate Occupancy Percentage
of all Qualifying Borrowing Base Properties to be less than 80.0%.
(b) Remaining Lease Term. With respect to each Qualifying Borrowing
Base Property after the first five (5) initial Borrowing Base Properties and
continuing until such time as the Borrowing Base Value exceeds $100,000,000, the
weighted average remaining lease term of the leases at such Qualifying Borrowing
Base Property (such weighting to be based on the respective demised rentable areas
of such leases) shall be at least two (2) years. If such minimum would be violated
at any time
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at any such Qualifying Borrowing Base Property, such Qualifying
Borrowing Base Property shall be eliminated from inclusion in the calculation of
Borrowing Base Value until either the Borrowing Base Value exceeds $100,000,000 or
the first day of the fiscal quarter of Borrower following the fiscal quarter in which the
weighted average remaining lease term of the leases at such Qualifying Borrowing
Base Property shall again equal or exceed two (2) years.
(c) Diversification. Once the Borrowing Base Pool contains seven (7)
Qualifying Borrowing Base Properties and has a Borrowing Base Value of at least
$100,000,000, Borrower must maintain the following diversification limitations at
all times:
| • | No one Qualifying Borrowing Base Property may constitute 35% or more of the Borrowing Base Value; | |
| • | No one “Metropolitan Statistical Area” (as determined from time to time by the United States Office of Management and Budget) may contain Qualifying Borrowing Base Properties that constitute in the aggregate 40% or more of total Borrowing Base Value; and | |
| • | The rental revenues paid by a single tenant (or group of tenants that are Affiliates of each other) may not comprise more than 20% of the Adjusted Borrowing Base NOI. | |
| • | To the extent that a Qualifying Borrowing Base Property causes any such diversification limitation to be violated, such Qualifying Borrowing Base Property shall still be included in the calculations of Borrowing Base Value and Adjusted Borrowing Base NOI, but the respective amounts so contributed to Borrowing Base Value and Adjusted Borrowing Base NOI by such Qualifying Borrowing Base Properties shall be reduced to the extent necessary to comply with the foregoing diversification limitations. For example, if the Borrowing Base Value attributable to any Qualifying Borrowing Base Property would exceed 35% of the aggregate Borrowing Base Value without such limitation, such Qualifying Borrowing Base Property’s contribution to Borrowing Base Value shall be reduced such that it is no more than 35% thereof. |
(d) Restriction on Ground Leased Projects. Not more than ten percent
(10%) of the Borrowing Base Value and not more than ten percent (10%) of the
Adjusted Borrowing Base NOI may at any time be attributable to Qualifying Borrowing
Base Properties that are not owned in fee simple, but are instead leased under a
Qualifying Ground Lease. To the extent that such percentage limitation is exceeded,
such Qualifying Borrowing Base Properties shall still be included in the
calculations of Borrowing Base Value and of Adjusted Borrowing Base NOI, but the
amounts so contributed to Borrowing Base Value and Adjusted Borrowing Base NOI shall
be reduced to the extent necessary to comply with such percentage limitation.
(ii) Addition of Qualifying Borrowing Base Properties. Not less than twenty
(20) Business Days prior to the date on which (a) Borrower expects a Wholly-Owned Subsidiary
to acquire a Project that will become a Qualifying Borrowing Base Property or (b) a Project
already owned by a Wholly-Owned Subsidiary is to be designated to become a Qualifying
Borrowing Base Property, Borrower shall notify the Administrative Agent thereof in writing
and thereafter provide the Administrative Agent with the following documents with respect
to such Project (a “Proposed Borrowing Base Property”) in form and substance
acceptable to the Administrative Agent (the “Eligible Borrowing Base Property
Qualification Documents”):
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(a) A formal written request to add such Project to the Borrowing Base Pool
specifying the expected date for such addition.
(b) A current rent roll and operating statement for the Proposed Borrowing Base
Property.
(c) A certificate from the Borrower showing the revised Borrowing Base Value,
Borrowing Base diversification (as described in Section 2.22(i)(c)) and
other Borrowing Base covenant calculations and compliance on a pro-forma basis that
will be in effect after addition of such Proposed Borrowing Base Property.
(d) A certification from the Borrower that the Proposed Borrowing Base Property
is free from all material environmental and structural issues.
(e) Other documents that may be reasonably requested by the Administrative
Agent including, but not limited to copies of rent rolls, ARGUS runs, Leases,
estoppels from all tenants under the Leases (to the extent obtainable after
commercially reasonable collection efforts), current title insurance commitment
and/or title search, together with copies of all title exceptions, current ALTA
survey, current property condition reports and current environmental assessments.
Each of the Lenders shall have fifteen (15) Business Days after it receives notice and
delivery thereof to notify the Administrative Agent in writing whether it approves or
objects to the proposed Qualifying Borrowing Base Property which objection shall be in
reasonable detail outlining why the proposed Qualifying Borrowing Base Property is not an
Eligible Borrowing Base Property. If any such Lender does not so approve or object to the
proposed Qualifying Borrowing Base Property, that Lender shall be deemed to have approved
the proposed Qualifying Borrowing Base Property. If at any time the Administrative Agent
shall determine that it does not have all of the Eligible Borrowing Base Property
Qualification Documents, it shall promptly notify Borrower and request with specificity any
missing documents. The Administrative Agent shall notify Borrower in writing within twenty
(20) Business Days after it receives notice thereof and delivery of the Eligible Borrowing
Base Property Qualification Documents related thereto if the Required Lenders have approved
the proposed Qualifying Borrowing Base Property. If the Administrative Agent on behalf of
the Lenders notifies Borrower that such Project has been so approved to become a Qualifying
Borrowing Base Property, then, as a condition precedent to such Project actually becoming a
Qualifying Borrowing Base Property and being included in the Collateral, Borrower shall
satisfy, or shall cause the applicable Subsidiary Guarantor owning such Project to satisfy,
the following conditions (the “Collateral Inclusion Conditions”) with respect to
such Project: (i) the applicable Subsidiary Guarantor owning such Project shall execute and
deliver a Joinder Agreement with respect to the Subsidiary Guaranty, if such Subsidiary
Guarantor has not already executed a Subsidiary Guaranty, together with the organizational
documents and good standing and foreign qualification certificates referenced in
Sections 4.1(b)(ii) and 4.1(b)(iii) with respect to any such new Subsidiary
Guarantor, (ii) Borrower shall execute and deliver (and shall cause any intervening
Subsidiaries owning, directly or indirectly, any Equity Interests in such the Subsidiary
Guarantor owning such Project to execute and deliver) to the Administrative Agent all
instruments, documents, or agreements, including a Collateral Assignment with respect to the
Pledged Equity Interests in such owning Subsidiary Guarantor in substantially the same form
as the Collateral Assignment attached as Exhibit G, consents and acknowledgments
with respect to such Collateral Assignment from such
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owning Subsidiary Guarantor, membership, partnership and stock certificates, as
applicable and blank transfer powers, as the Administrative Agent on behalf of the Lenders
shall deem reasonably necessary or desirable to obtain and perfect a first priority security
interest in, or Lien on, the Pledged Equity Interests in such owning Subsidiary Guarantor,
and the other Collateral with respect thereto as described in the Collateral Assignment, if
such documents have not previously been executed and delivered, (iii) cause the following
documents with respect to such Substitute Collateral to be delivered, executed and/or filed:
(A) a written opinion of the Borrower’s counsel addressed to the Lenders in a form
reasonably satisfactory to the Administrative Agent regarding the documents described in
clause (ii) above, (B) evidence that the applicable title company has committed to issue a
title insurance policy insuring such Subsidiary Guarantor’s title to the real property
constituting the Project in a form, and with such coverages and endorsements, as are all
reasonably satisfactory to the Administrative Agent, including without limitation a
so-called “mezzanine endorsement” in favor of the Administrative Agent for the benefit of
the Lenders in an amount not less than 50% of the Borrowing Base Value attributable to such
Substitute Collateral to the extent such an endorsement is authorized to be issued in the
state in which such Project is located; provided, however, Administrative
Agent may waive the mezzanine endorsement requirement if such proposed Qualifying Borrowing
Base Property is located in a state in which the cost of issuing such mezzanine endorsement
is more than nominal (in Administrative Agent’s sole discretion), and (C) UCC-1 financing
statements evidencing and perfecting the security interest granted in the applicable Pledged
Equity Interests, and (iv) execute and deliver to the Administrative Agent on behalf of the
Lenders a written confirmation that, as of the date such additional Collateral is included
in Collateral, all of the representations and warranties contained in Section 5.20
hereof are true and correct in all material respects with respect to such Qualifying
Borrowing Base Property as if it were an Initial Borrowing Base Property. Administrative
Agent and Borrower shall cooperate in good faith to document and satisfy the Collateral
Inclusion Conditions as soon as reasonable possible after approval or deemed approval of the
Required Lenders has been obtained.
(iii) Sale, Contribution or Financing of a Borrowing Base Property. Provided no
Default or Unmatured Default shall have occurred hereunder or under the other Loan Documents
and be continuing (or would exist immediately after giving effect to the transactions
contemplated by this Section 2.22(iii), including the covenants set forth in clauses
(i) and (ii) Section 6.21, Subsidiary may (i) sell a Borrowing Base Property (or
Borrower may sell its Pledged Equity Interest in such Subsidiary Guarantor), (ii) contribute
a Borrowing Base Property (or Borrower may contribute its Pledged Equity Interest in such
Subsidiary Guarantor) to an existing or newly formed Investment Affiliate (iii) create a
Lien securing Indebtedness on a Borrowing Base Property or (iv) request that a particular
Project no longer constitutes a Borrowing Base Property (for purposes of this Section, such
a sale or contribution of a Borrowing Base Property or the creation of such a Lien or
recharacterization of such Project shall be referred to as a “Borrowing Base Release
Transaction”) upon the following terms and conditions:
(a) Borrower shall deliver to the Administrative Agent written notice of the
desire to consummate such Borrowing Base Release Transaction on or before the date
that is ten (10) Business Days prior to the date on which the Borrowing Base Release
Transaction is to be effected;
(b) On or before the date that is five (5) Business Days prior to the date of
the Borrowing Base Release Transaction is to be effected, Borrower shall submit
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to the Administrative Agent a certificate, which shall be subject to the Administrative
Agent’s review and reasonable approval, on behalf of the Lenders, setting forth the
Borrowing Base Leverage Ratio and Borrowing Base Debt Service
Coverage on a pro forma basis as of the date of the proposed Borrowing Base Release Transaction
giving effect to: (A) the Borrowing Base Release Transaction, (B) any contemplated
paydown of the Outstanding Facility Amount in connection with such Borrowing Base
Transaction and (C) any other Projects that became or are becoming a Qualifying
Borrowing Base Property prior to the scheduled date of the Borrowing Base Release
Transaction (the “Pro Forma Calculations”);
(c) If the Pro Forma Calculations show that Borrower will be out of compliance
with the covenants contained in clauses (i) and (ii) of Section 6.21 or with
any of the limitations set forth in the definition of Qualifying Borrowing Base
Property or in this Section 2.22, Borrower shall, before the closing of the
Borrowing Base Release Transaction, either add to the Borrowing Base Pool an
additional Qualifying Borrowing Base Property that causes Borrower to be in
compliance with such covenants and conditions or pay down the Outstanding Facility
Amount sufficiently to permit Borrower to be in compliance with those covenants and
conditions;
(d) To the extent that any such sale, disposition or financing of all or a
portion of a Qualifying Borrowing Base Property (or of any Pledged Equity Interest
in a Subsidiary Guarantor owning such Qualifying Borrowing Base Property) occurs as
permitted by this Section 2.22, Borrower shall make a principal payment on
the Notes as and to the extent required by Section 2.8(b) of this Agreement.
(e) Upon the occurrence of the Borrowing Base Release Transaction, the
underlying Project shall no longer be a Borrowing Base Property, and the
Administrative Agent on behalf of the Lenders shall execute such documents or
instruments and take all other actions necessary or advisable on behalf of the
Lenders to release the related security interests (including without limitation
releases of any Pledged Equity Interests) evidenced by any Security Documents.
Notwithstanding anything to the contrary in this Section 2.22(iii), no Qualifying
Borrowing Base Property shall be released from the Borrowing Base Pool without Required Lender
approval if such release will cause the Borrowing Base Pool to have fewer than five (5) Qualifying
Borrowing Base Properties remaining or if it would reduce the Borrowing Base Value below
$60,000,000.
ARTICLE IIA
LETTER OF CREDIT SUBFACILITY
2A.1 Obligation to Issue. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrower herein set forth, the Issuing Bank
hereby agrees to issue for the account of Borrower, one or more Facility Letters of Credit in
accordance with this Article IIA, from time to time during the period commencing on the
Agreement Execution Date and ending on a date sixty (60) days prior to the Facility Termination
Date.
2A.2 Types and Amounts.The Issuing Bank shall not:
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(i) issue any Facility Letter of Credit if the aggregate maximum amount then
available for drawing under Letters of Credit issued by such Issuing Bank, after
giving effect to the Facility Letter of Credit requested hereunder, shall exceed any
limit imposed by law or regulation upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if, after giving effect thereto, (1)
the then applicable Outstanding Facility Amount would exceed the then current
Aggregate Commitment or (2) the Facility Letter of Credit Obligations would
exceed the Facility Letter of Credit Sublimit; or
(iii) issue any Facility Letter of Credit having an expiration date, or
containing automatic extension provisions to extend such date, to a date beyond the
Facility Termination Date.
2A.3 Xxxxxxxxxx.Xx addition to being subject to the satisfaction of the conditions
contained in Article IV hereof and in the balance of this Article IIA, the
obligation of the Issuing Bank to issue any Facility Letter of Credit is subject to the
satisfaction in full of the following conditions:
(i) Borrower shall have delivered to the Issuing Bank at such times and in such
manner as the Issuing Bank may reasonably prescribe such documents and materials as
may be reasonably required pursuant to the terms of the proposed Facility Letter of
Credit (it being understood that if any inconsistency exists between such documents
and the Loan Documents, the terms of the Loan Documents shall control) and the
proposed Facility Letter of Credit shall be reasonably satisfactory to the Issuing
Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or decree of any court,
arbitrator or governmental authority shall purport by its terms to enjoin or
restrain the Issuing Bank from issuing the requested Facility Letter of Credit and
no law, rule or regulation applicable to the Issuing Bank and no request or
directive (whether or not having the force of law) from any governmental authority
with jurisdiction over the Issuing Bank shall prohibit or request that the Issuing
Bank refrain from the issuance of Letters of Credit generally or the issuance of the
requested Facility Letter or Credit in particular; and
(iii)
there shall not exist any Default.
2A.4
Procedure
for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the Administrative Agent at least three (3)
Business Days’ prior written notice of any requested issuance of a Facility Letter of Credit under
this Agreement (a “Letter of Credit Request”), such notice shall be irrevocable, except as
provided in Section 2A.4(b)(i) below, and shall specify:
| (1) | the stated amount of the Facility Letter of Credit requested (which stated amount shall not be less than $50,000); | ||
| (2) | the effective date (which day shall be a Business Day) of issuance of such requested Facility Letter of Credit (the “Issuance Date”); | ||
| (3) | the date on which such requested Facility Letter of Credit is to expire (which day shall be a Business Day not later than the first to occur of (i) the first anniversary of |
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| the Issuance Date or (ii) the last Business Day prior to the then-current Facility Termination Date); | |||
| (4) | the purpose for which such Facility Letter of Credit is to be issued; | ||
| (5) | the Person for whose benefit the requested Facility Letter of Credit is to be issued; and | ||
| (6) | any special language required to be included in the Facility Letter of Credit. |
At the time such request is made, Borrower shall also provide the Administrative Agent and the
Issuing Bank with a copy of the form of the Facility Letter of Credit that Borrower is requesting
be issued and shall execute and deliver the Issuing Bank’s customary letter of credit application
with respect thereto. Such notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than noon (Cleveland time) on the last Business Day on which notice
can be given under this Section 2A.4(a).
(b) Subject to the terms and conditions of this Article IIA and provided that the
applicable conditions set forth in Article IV hereof have been satisfied, the Issuing Bank
shall, on the Issuance Date, issue a Facility Letter of Credit on behalf of Borrower in accordance
with the Letter of Credit Request and the Issuing Bank’s usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from Borrower specifically
revoking the Letter of Credit Request with respect to such Facility Letter of Credit given not
later than the Business Day immediately preceding the Issuance Date, or (ii) written or telephonic
notice from the Administrative Agent stating that the issuance of such Facility Letter of Credit
would violate Section 2A.2.
(c) The Issuing Bank shall give the Administrative Agent (who shall promptly notify Lenders)
and Borrower written or telex notice, or telephonic notice confirmed promptly thereafter in
writing, of the issuance of a Facility Letter of Credit (the “Issuance Notice”).
(d) The Issuing Bank shall not extend or amend any Facility Letter of Credit unless the
requirements of this Section 2A.4 are met as though a new Facility Letter of Credit was
being requested and issued.
2A.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify Borrower and the Administrative Agent (who shall
promptly notify Lenders) of any draw under a Facility Letter of Credit. Any such draw shall not be
deemed to be a default hereunder but shall constitute an Advance of the Facility in the amount of
the Reimbursement Obligation with respect to such Facility Letter of Credit and shall bear interest
from the date of the relevant drawing(s) under the pertinent Facility Letter of Credit at the Base
Rate; provided that if a Default exists at the time of any such drawing(s), then Borrower shall
reimburse the Issuing Bank for drawings under a Facility Letter of Credit issued by the Issuing
Bank no later than the next succeeding Business Day after the payment by the Issuing Bank and until
repaid such Reimbursement Obligation shall bear interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank under or in connection with
any Facility Letter of Credit, if taken or omitted in the absence of willful misconduct or gross
negligence, shall not put the Issuing Bank under any resulting liability to any Lender or, provided
that such Issuing Bank has complied with the procedures specified in Section 2A.4, relieve
any Lender of its obligations hereunder to the Issuing Bank. In determining whether to pay under
any Facility Letter of Credit, the Issuing Bank shall have no obligation relative to the Lenders
other than to confirm that any documents required to be delivered under such Letter of Credit
appear to have
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been delivered in compliance, and that they appear to comply on their face, with the
requirements of such Letter of Credit.
2A.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any Facility Letter of Credit in
accordance with the procedures set forth in this Article IIA, each Lender shall be deemed
to have irrevocably and unconditionally purchased and received from the Issuing Bank, without
recourse, representation or warranty, an undivided interest and participation equal to such
Lender’s Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of Borrower with respect thereto) and all related rights hereunder. Each Lender’s
obligation to make further Loans to Borrower (other than any payments such Lender is required to
make under subparagraph (b) below) or to purchase an interest from the Issuing Bank in any
subsequent Facility Letters of Credit issued by the Issuing Bank on behalf of Borrower shall be
reduced by such Lender’s Percentage of the undrawn portion of each Facility Letter of Credit
outstanding.
(b) In the event that the Issuing Bank makes any payment under any Facility Letter of Credit
and Borrower shall not have repaid such amount to the Issuing Bank pursuant to Section 2A.7
hereof, the Issuing Bank shall promptly notify the Administrative Agent, which shall promptly
notify each Lender of such failure, and each Lender shall promptly and unconditionally pay to the
Administrative Agent for the account of the Issuing Bank the amount of such Lender’s Percentage of
the unreimbursed amount of such payment, and the Administrative Agent shall promptly pay such
amount to the Issuing Bank. Lender’s payments of its Percentage of such Reimbursement Obligation
as aforesaid shall be deemed to be a Loan by such Lender and shall constitute outstanding principal
under such Lender’s Note. The failure of any Lender to make available to the Administrative Agent
for the account of the Issuing Bank its Percentage of the unreimbursed amount of any such payment
shall not relieve any other Lender of its obligation hereunder to make available to the
Administrative Agent for the account of such Issuing Bank its Percentage of the unreimbursed amount
of any payment on the date such payment is to be made, but no Lender shall be responsible for the
failure of any other Lender to make available to the Administrative Agent its Percentage of the
unreimbursed amount of any payment on the date such payment is to be made. Any Lender which fails
to make any payment required pursuant to this Section 2A.6(b) shall be deemed to be a
Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of a Reimbursement Obligation,
including any interest thereon, the Issuing Bank shall promptly pay to the Administrative Agent and
the Administrative Agent shall promptly (on the same day as received by the Administrative Agent if
received prior to noon (Cleveland time) on such day and otherwise on the next Business Day) pay to
each Lender which has funded its participating interest therein, in immediately available funds, an
amount equal to such Lender’s Percentage thereof.
(d) Upon the request of the Administrative Agent or any Lender, the Issuing Bank shall furnish
to such Administrative Agent or Lender copies of any Facility Letter of Credit to which the Issuing
Bank is party and such other documentation as may reasonably be requested by the Administrative
Agent or Lender.
(e) The obligations of a Lender to make payments to the Administrative Agent for the account
of the Issuing Bank with respect to a Facility Letter of Credit shall be absolute, unconditional
and irrevocable, not subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this Agreement
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relating to the issuance of such Facility Letter of Credit, and such payments shall be
made in accordance with the terms and conditions of this Agreement under all circumstances.
2A.7 Payment of Reimbursement Obligations.
(a) Borrower agrees to pay to the Administrative Agent for the account of the Issuing Bank the
amount of all Advances for Reimbursement Obligations, interest and other amounts payable to the
Issuing Bank under or in connection with any Facility Letter of Credit when due, irrespective of
any claim, set-off, defense or other right which Borrower may have at any time against any Issuing
Bank or any other Person, under all circumstances, including without limitation any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the
other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right which Borrower
may have at any time against a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the Issuing Bank, any Lender,
or any other Person, whether in connection with this Agreement, any Facility Letter
of Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between Borrower and the beneficiary named in
any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under the Facility
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect of any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by Borrower received by the Issuing Bank or the Administrative
Agent with respect to a Facility Letter of Credit and distributed by the Administrative Agent to
the Lenders on account of their participations is thereafter set aside, avoided or recovered from
the Administrative Agent or Issuing Bank in connection with any receivership, liquidation,
reorganization or bankruptcy proceeding, each Lender which received such distribution shall, upon
demand by the Administrative Agent, contribute such Lender’s Percentage of the amount set aside,
avoided or recovered together with interest at the rate required to be paid by the Issuing Bank or
the Administrative Agent upon the amount required to be repaid by the Issuing Bank or the
Administrative Agent.
2A.8 Compensation for Facility Letters of Credit.
(i) Borrower shall pay to the Administrative Agent, for the ratable account of the Lenders
(including the Issuing Bank), based upon the Lenders’ respective Percentages, a per annum
fee (the “Facility Letter of Credit Fee”) as a percentage of the face amount of each
Facility Letter of Credit outstanding equal to the LIBOR Applicable Margin in effect from
time to time hereunder while such Facility Letter of Credit is outstanding. The Facility
Letter of Credit Fee relating to any Facility Letter of Credit shall accrue on a daily basis
and shall be
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due and payable in advance on the Issuance Date of such Facility Letter of Credit and on the
first Business Day of each calendar quarter following the issuance of such Facility Letter
of Credit. The Administrative Agent shall promptly (on the same day as received by the
Administrative Agent if received prior to noon (Cleveland time) on such day and otherwise on
the next Business Day) remit such Facility Letter of Credit Fees, when paid, to the other
Lenders in accordance with their Percentages thereof. Borrower shall not have any liability
to any Lender for the failure of the Administrative Agent to promptly deliver funds to any
such Lender and shall be deemed to have made all such payments on the date the respective
payment is made by Borrower to the Administrative Agent, provided such payment is received
by the time specified in Section 2.13 hereof.
(b) The Issuing Bank also shall have the right to receive solely for its own account an
issuance fee equal to the greater of (A) $1,500 or (B) one-eighth of one percent (0.125%) per annum
to be calculated on the face amount of each Facility Letter of Credit for the stated duration
thereof, based on the actual number of days and using a 360-day year basis. The issuance fee shall
be payable by Borrower on the Issuance Date for each such Facility Letter of Credit and on the date
of any increase therein or extension thereof. The Issuing Bank shall also be entitled to receive
its reasonable out-of-pocket costs and the Issuing Bank’s standard charges of issuing, amending and
servicing Facility Letters of Credit and processing draws thereunder.
2A.9 Letter of Credit Collateral Account. Borrower hereby agrees that it will immediately
upon the request of the Administrative Agent, establish a special collateral account (the
“Letter of Credit Collateral Account”) at the Administrative Agent’s office at the address
specified pursuant to Article XIII, in the name of Borrower but under the sole dominion and
control of the Administrative Agent, for the benefit of the Lenders, and in which Borrower shall
have no interest other than as set forth in Section 8.1. The Letter of Credit Collateral
Account shall hold the deposits Borrower is required to make after a Default on account of any
outstanding Facility Letters of Credit as described in Section 8.1. In addition to the
foregoing, Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a
security interest in and to the Letter of Credit Collateral Account and any funds that may
hereafter be on deposit in such account, including income earned thereon. The Lenders acknowledge
and agree that Borrower has no obligation to fund the Letter of Credit Collateral Account unless
and until so required under Section 8.1 hereof.
ARTICLE III.
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. Subject to the provisions of Section 3.6, 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 party hereto 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 LIBOR Loans, or
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(ii) imposes or increases or makes 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, or
(iii) imposes any other condition the result of which is to increase the cost to any
Lender or any applicable Lending Installation of making, funding or maintaining its LIBOR
Loans, or reduces any amount receivable by any Lender or any applicable Lending Installation
in connection with its LIBOR Loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of LIBOR Loans, by an
amount deemed material by such Lender as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending
Installation, as the case may be, of making or maintaining its LIBOR Loans or Commitment or to
reduce the return received by such Lender or applicable Lending Installation in connection with
such LIBOR Loans or Commitment, then, subject to the provisions of Section 3.6, 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 a Lender in good faith determines
the amount of capital required or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such Lender is increased as a result of
a Change (as hereinafter defined), then, within 15 days of demand by such Lender, Borrower shall
pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender in good faith determines is attributable to
this Agreement, its outstanding credit exposure hereunder or its obligation to make Loans hereunder
(after taking into account such Lender’s policies as to capital adequacy). “Change” means
(i) any change after the date of this Agreement in the Risk-Based Capital Guidelines (as
hereinafter defined) or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital Guidelines” means (i) the risk-based capital
guidelines in effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the June 2006 report of the Basel Committee on Banking Regulation
and Supervisory Practices Entitled “Basel II: International Convergence of Capital Measurements
and Capital Standards: A Revised Framework,” including transition rules, and any amendments to
such regulations adopted prior to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender in good faith determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would violate any
applicable law, rule, regulation or directive, whether or not having the force of law, the
Administrative Agent shall, with written notice to Borrower, suspend the availability of the
affected Type of Advance and require any LIBOR Advances of the affected Type to be repaid; or if
the Required Lenders in good faith determine that (i) deposits of a type or maturity appropriate to
match fund LIBOR Advances are not available, the Administrative Agent shall, with written notice to
Borrower, suspend the availability of the affected Type of Advance with respect to any LIBOR
Advances made after the date of any such determination, or (ii) an interest rate applicable to a
Type of Advance does not accurately reflect the cost of making a LIBOR Advance of such Type, then,
if for any reason whatsoever the provisions of Section 3.1 are inapplicable, the
Administrative Agent shall, with written notice to Borrower, suspend the availability of the
affected Type of Advance with
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respect to any LIBOR Advances made after the date of any such determination. If Borrower is
required to so repay a LIBOR Advance, Borrower may concurrently with such repayment borrow from the
Lenders, in the amount of such repayment, a Base Rate Advance.
3.4. Funding Indemnification. If any payment of a LIBOR Advance occurs on a date
which is not the last day of the applicable LIBOR Interest Period, whether because of acceleration,
prepayment or otherwise, or a ratable LIBOR Advance is not made on the date specified by Borrower
for any reason other than default by the Lenders or as a result of unavailability pursuant to
Section 3.3, Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost (incurred or expected to be
incurred) in liquidating or employing deposits acquired to fund or maintain the LIBOR Advance and
shall pay all such losses or costs within fifteen (15) days after written demand therefor.
3.5. Taxes.
(i) All payments by Borrower to or for the account of any Lender or the Administrative
Agent hereunder or under any Note shall be made free and clear of and without deduction for
any and all Taxes. If Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Administrative 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 Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (b) Borrower shall make such
deductions, (c) Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) Borrower shall furnish to the Administrative Agent
the original copy of a receipt evidencing payment thereof within 30 days after such payment
is made.
(ii) In addition, 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 Taxes”).
(iii) Borrower hereby agrees to indemnify the Administrative 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 Administrative
Agent or such Lender 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 Administrative 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 each of Borrower and the
Administrative 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 each of Borrower and the Administrative 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
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further undertakes to deliver to each of Borrower and the Administrative 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 Borrower or the Administrative 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 Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide 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.
(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 Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate following receipt of such
documentation.
(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 Administrative 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 Administrative Agent of a change in circumstances
which rendered its exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any jurisdiction on amounts
payable to the Administrative Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative Agent). The
obligations of the Lenders under this Section 3.5(vii) shall survive the payment of
the Obligations and termination of this Agreement and any such Lender obligated to indemnify
the Administrative Agent shall not be entitled to indemnification from Borrower with respect
to such amounts, whether pursuant to this Article or otherwise, except to the extent
Borrower participated in the actions giving rise to such liability.
3.6. Lender Statements; Survival of Indemnity. If any Lender becomes entitled to claim any
additional amounts pursuant to Sections 3.1, 3.2 or 3.5, Borrower shall not
be required to pay the same unless they are the result of requirements imposed generally on lenders
similar to such Lender
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and not the result of some specific reserve or similar requirement imposed on such Lender as a result of such Lender’s special circumstances. If any Lender becomes entitled to claim any
additional amounts pursuant to Sections 3.1, 3.2 or 3.5, such Lender shall provide Borrower with not less than thirty (30) days written notice (with a copy to the Administrative Agent) specifying in
reasonable detail the event by reason of which it has become so entitled and the additional amount required to fully compensate Lender for such additional cost or reduced amount; provided that
Borrower is not required to compensate Lender pursuant to Sections 3.1, 3.2 or 3.5 for any increased costs or reductions incurred more than ninety (90) days prior to the date that such Lender notifies
Borrower of the events giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefore. To the extent reasonably possible, each Lender shall designate
an alternate Lending Installation with respect to its LIBOR Loans to reduce any liability of Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of LIBOR Advances
under Section 3.3, so long as such designation is not, in the reasonable judgment of such Lender, disadvantageous to such Lender. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final, conclusive and binding on Borrower in the absence of manifest error. Determination of amounts payable under
such Sections in connection with a LIBOR Loan shall be calculated as though each Lender funded its LIBOR Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the LIBOR Base 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 Borrower of such written statement. The obligations of
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV.
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be required to make an Advance hereunder
or issue a Facility Letter of Credit hereunder after the Agreement Execution Date, unless (a)
Borrower shall, prior to or concurrently with such Advance or issuance, have paid all fees due and
payable to the Lenders and the Administrative Agent hereunder, and (b) Borrower shall have
furnished to the Administrative Agent, with sufficient copies for the Lenders, the following
(i) The duly executed originals of the Loan Documents, including the Notes, payable to
the order of each of the Lenders, this Agreement, the Subsidiary Guaranty, the Parent
Guaranty, the Collateral Assignment and the other Security Documents;
(ii) (A) Certificates of good standing for Borrower, the Parent Guarantor and each
Subsidiary Guarantor, from the State of Delaware for Borrower and the states of organization
of the Parent Guarantor and each Subsidiary Guarantor, certified by the appropriate
governmental officer and dated not more than sixty (60) days prior to the Agreement
Execution Date, and (B) foreign qualification certificates for each Subsidiary Guarantor,
certified by the appropriate governmental officer and dated not more than sixty (60) days
prior to the Agreement Execution Date, for each other jurisdiction where the failure of such
Subsidiary Guarantor to so qualify or be licensed (if required) is reasonably expected to
have a Material Adverse Effect;
(iii) Copies of the formation documents (including code of regulations, if appropriate)
of Borrower, the Parent Guarantor and the Subsidiary Guarantors, certified by an
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officer of Borrower, Parent Guarantor or such Subsidiary Guarantor, as appropriate, together with all
amendments thereto, provided that a certificate of no change from Borrower may be delivered
if no changes have occurred in such documents since their delivery under the Original Credit
Agreement;
(iv) Incumbency certificates, executed by officers of Borrower, Parent Guarantor and
the Subsidiary Guarantors, which shall identify by name and title and bear the signature of
the Persons authorized to sign the Loan Documents and to make borrowings hereunder on behalf
of Borrower, upon which certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by Borrower, Parent Guarantor or
any such Subsidiary Guarantor and provided further that a certificate of no change from
Borrower may be delivered if no changes have occurred in such certificates since their
delivery under the Original Credit Agreement;
(v) Copies, certified by a Secretary or an Assistant Secretary of Borrower, Parent
Guarantor and each Subsidiary Guarantor, of the Board of Directors’ resolutions (and
resolutions of other bodies, if any are reasonably deemed necessary by counsel for any
Lender) authorizing the Advances provided for herein, with respect to Borrower, and the
execution, delivery and performance of the Loan Documents to be executed and delivered by
Borrower, Parent Guarantor and each Subsidiary Guarantor hereunder;
(vi) A written opinion of Borrower’s, Parent Guarantor’s and Subsidiary Guarantors’
counsel, addressed to the Lenders in form and substance as the Administrative Agent may
reasonably approve;
(vii) A certificate, signed by an officer of Borrower, stating that on the initial
Borrowing Date no Default or Unmatured Default has occurred and is continuing and that all
representations and warranties of Borrower are true and correct as of the initial Borrowing
Date provided that such certificate is in fact true and correct;
(viii) The most recent financial statements of Borrower;
(ix) Copies of the UCC financing statement, judgment, and tax lien searches with
respect to Borrower, Parent Guarantor and each Subsidiary Guarantor from their respective
states of organization obtained under the Original Credit Agreement;
(x) Written money transfer instructions, in substantially the form of Exhibit E
hereto, addressed to the Administrative Agent and signed by an Authorized Officer, together
with such other related money transfer authorizations as the Administrative Agent may have
reasonably requested;
(xi) Evidence that all upfront fees due to each of the Lenders under the terms of their
respective commitment letters have been paid, or will be paid out of the proceeds of the
initial Advance hereunder;
(xii) Delivery of all Eligible Borrowing Base Property Qualification Documents and the
satisfaction of all Collateral Inclusion Conditions with respect to the Initial Borrowing
Base Properties, which must be comprised of at least four Borrowing Base Properties having a
Borrowing Base Value of at least $50,000,000; and
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(xiii) Such other documents as any Lender or its counsel may have reasonably requested,
the form and substance of which documents shall be reasonably acceptable to the parties and
their respective counsel.
4.2. Each Advance and Issuance. The Lenders shall not be required to make any Advance
or issue any Facility Letter of Credit unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in Article V are true and
correct as of such Borrowing Date with respect to Borrower and to any Subsidiary in
existence on such Borrowing 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 be true and correct on and as of such earlier date;
(iii) Borrower has furnished the Administrative Agent with the certificate required
under Section 4.1(xiii) certifying the then-current Borrowing Base Value; and
(iv) All legal matters incident to the making of such Advance or issuance of such
Facility Letter of Credit shall be reasonably satisfactory to the Lenders and their counsel.
Each Borrowing Notice and each Letter of Credit Request with respect to each such Advance
shall constitute a representation and warranty by Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders that:
5.1. Existence. Borrower is a limited liability company duly organized and validly
existing under the laws of the State of Delaware and is duly qualified, properly licensed (if
required), in good standing and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to be so qualified,
licensed and in good standing and to have the requisite authority would not have a Material Adverse
Effect. Each of Parent Guarantor and Borrower’s Subsidiaries is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is conducted.
5.2. Authorization and Validity. Borrower has the corporate power and authority and
legal right to execute and deliver the Loan Documents and to perform its obligations thereunder.
The execution and delivery by Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper proceedings, and the Loan Documents constitute
legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally.
5.3. No Conflict; Government Consent. Neither the execution and delivery by Borrower
of the Loan Documents, nor the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law, rule, regulation, order, writ,
judgment,
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injunction, decree or award binding on Borrower or any of its Subsidiaries or Borrower’s
or any Subsidiary’s limited liability company agreements, or the provisions of any indenture,
instrument or agreement to which Borrower or any of its Subsidiaries is a party or is subject, or
by which it, or its Property, is bound, or conflict with or constitute a default thereunder, except
where such violation, conflict or default is not reasonably expected to have a Material Adverse
Effect, or result in the creation or imposition of any Lien in, of or on the Property of Borrower
or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by,
any governmental or public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents other than the filing of a
copy of this Agreement.
5.4. Financial Statements; Material Adverse Effect. All consolidated financial
statements of Parent Guarantor, Borrower and Borrower’s Subsidiaries heretofore or hereafter
delivered to the Lenders were prepared in accordance with GAAP in effect on the preparation date of
such statements and fairly present in all material respects the consolidated financial condition
and operations of Borrower and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended, subject, in the case of interim financial statements, to
normal and customary year-end adjustments. From the preparation date of the most recent financial
statements delivered to the Lenders through the Agreement Execution Date, there was no change in
the business, properties, or condition (financial or otherwise) of Parent Guarantor, Borrower and
Borrower’s Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
5.5. Taxes. Parent Guarantor, Borrower and Borrower’s Subsidiaries 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 Parent
Guarantor, Borrower or any of Borrower’s Subsidiaries except such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided. No tax liens have
been filed and no claims are being asserted with respect to such taxes. The charges, accruals and
reserves on the books of Parent Guarantor, Borrower and Borrower’s Subsidiaries in respect of any
taxes or other governmental charges are adequate.
5.6. Litigation and Guarantee Obligations. Except as set forth on Schedule 3
hereto or as set forth in written notice to the Administrative Agent from time to time, there is no
litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the
knowledge of any of their officers, threatened against or affecting Parent Guarantor, Borrower or
any of Borrower’s Subsidiaries which is reasonably be expected to have a Material Adverse Effect.
Borrower has no material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 6.1 or as set forth in written notices to the
Administrative Agent given from time to time after the Agreement Execution Date on or about the
date such material contingent obligations are incurred.
5.7. Subsidiaries; Investment Affiliates. Schedule 1 hereto contains, an
accurate list of all Subsidiaries of Parent Guarantor, setting forth their respective jurisdictions
of incorporation or formation and the percentage of their respective capital stock or partnership
or membership interest owned by Parent Guarantor, Borrower or other Subsidiaries. All of the
issued and outstanding shares of capital stock of such Subsidiaries that are corporations have been
duly authorized and issued and are fully paid and non-assessable. There are no outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders’ or voting trust agreements) for the issuance,
sale, registration or voting of, or
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outstanding securities convertible into, any additional shares of capital stock of any class, or partnership or other ownership interests of any type in, any such
Subsidiary. Schedule 6 hereto contains an accurate list of all Investment Affiliates of
the Consolidated Group, including the correct legal name of such Investment Affiliate, the type of
legal entity which each such Investment Affiliate is, and the type and amount of all equity
interests in such Investment Affiliate held directly or indirectly by members of the Consolidated
Group.
5.8. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $1,000,000. Neither Parent Guarantor, Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any withdrawal liability to
Multiemployer Plans in excess of $250,000 in the aggregate. Each Plan complies in all material
respects with all applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Plan, neither Borrower nor any other members of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan.
5.9. Accuracy of Information. No information, exhibit or report furnished by Parent
Guarantor, Borrower or any of Borrower’s Subsidiaries to the Administrative 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 misleading.
5.10. Regulation U. Borrower has not used the proceeds of any Advance to buy or carry
any margin stock (as defined in Regulation U) in violation of the terms of this Agreement.
5.11. Material Agreements. Neither Parent Guarantor, Borrower nor any Subsidiary of
Borrower is a party to any agreement or instrument or subject to any charter or other corporate
restriction which is reasonably be expected to have a Material Adverse Effect. Neither Parent
Guarantor, Borrower nor any Subsidiary of Borrower is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i) any agreement to
which it is a party, which default is reasonably expected to have a Material Adverse Effect, or
(ii) any agreement or instrument evidencing or governing Indebtedness, which default would
constitute a Default hereunder.
5.12. Compliance With Laws. Borrower and its Subsidiaries 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 non-compliance
which would not have a Material Adverse Effect. Neither Borrower nor any Subsidiary of Borrower
has received any notice to the effect that its operations are not in material compliance with any
of the requirements of applicable federal, state and local environmental, health and safety
statutes and regulations or the subject of any federal or state 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 have a Material Adverse Effect.
5.13. Ownership of Properties. Except as set forth on Schedule 2 hereto, on
the date of this Agreement, Borrower and Borrower’s Subsidiaries will have good and marketable
title, free of all Liens other than those permitted by Section 6.16, to all of the Property
and assets reflected in the financial statements as owned by it.
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5.14. Investment Company Act. Neither Parent Guarantor, nor Borrower nor any
Subsidiary of Borrower or Parent Guarantor is an “investment company” or a company “controlled” by
an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
5.15. Affiliate Transactions. Except as permitted by Section 6.17, neither
Parent Guarantor, Borrower, nor any of Borrower’s Subsidiaries is a party to or bound by any
agreement or arrangement (whether oral or written) to which any Affiliate of Borrower or any of
Borrower’s Subsidiaries is a party.
5.16. Solvency.
(i) Immediately after the Agreement Execution Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of such Loans, (a)
the fair value of the assets of Parent Guarantor, Borrower and Borrower’s Subsidiaries on a
consolidated basis, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of Parent Guarantor, Borrower and Borrower’s
Subsidiaries on a consolidated basis; (b) the present fair saleable value of the Property of
Parent Guarantor, Borrower and Borrower’s Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of Parent
Guarantor, Borrower and Borrower’s Subsidiaries on a consolidated basis on their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) Parent Guarantor, Borrower and Borrower’s
Subsidiaries on a consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) Parent Guarantor, Borrower and Borrower’s Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the businesses in which
they are engaged as such businesses are now conducted and are proposed to be conducted after
the date hereof.
(ii) Borrower does not intend to, or to permit any of its Subsidiaries to, and does not
believe that it or any of its Subsidiaries will, incur debts beyond its ability to pay such
debts as they mature, taking into account the timing of and amounts of cash to be received
by it or any such Subsidiary and the timing of the amounts of cash to be payable on or in
respect of its Indebtedness or the Indebtedness of any such Subsidiary.
5.17. Insurance. Borrower and its Subsidiaries carry insurance on their Projects with
financially sound and reputable insurance companies, in such amounts, with such deductibles and
covering such risks as are required pursuant to the insurance requirements attached hereto as
Exhibit J and made a part hereof:
5.18. REIT Status. Parent Guarantor is qualified as a real estate investment trust
under Section 856 of the Code, is a self-directed and self-administered real estate investment
trust and currently is in compliance in all material respects with all provisions of the Code
applicable to the qualification of Parent Guarantor as a real estate investment trust.
5.19. Environmental Matters. Each of the following representations and warranties is
true and correct on and as of the Agreement Execution Date except as disclosed in environmental
reports delivered to the Administration Agent or on Schedule 4 attached hereto and to the
extent that the facts and circumstances giving rise to any such failure to be so true and correct,
in the aggregate, are not reasonably be expected to have a Material Adverse Effect:
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(a) To the best knowledge of Borrower, the Projects of Borrower and its
Subsidiaries do not contain any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, or could reasonably give rise to
liability of Borrower or any such Subsidiary under, Environmental Laws.
(b) To the best knowledge of Borrower, (i) the Projects of Borrower and
its Subsidiaries and all operations at such Projects are in compliance with all
applicable Environmental Laws, and (ii) with respect to all Projects owned by Borrower
and/or its Subsidiaries (x) for at least two (2) years, have in the last two years, or
(y) for less than two (2) years, have for such period of ownership, been in compliance in
all material respects with all applicable Environmental Laws.
(c) Neither Borrower nor any of its Subsidiaries has received any notice
of violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with regard to any
of the Projects, nor does Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) To the best knowledge of Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Projects of Borrower and its
Subsidiaries in violation of, or in a manner or to a location which could reasonably give
rise to liability of Borrower or any such Subsidiary under, Environmental Laws, nor have
any Materials of Environmental Concern been generated, treated, stored or disposed of at,
on or under any of the Projects of Borrower and its Subsidiaries in violation of, or in a
manner that could give rise to liability of Borrower or any such Subsidiary under, any
applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of Borrower, threatened, under any Environmental Law to
which Borrower or any of its Subsidiaries is or, to Borrower’s knowledge, will be named
as a party with respect to the Projects of Borrower and its Subsidiaries, nor are there
any consent decrees or other decrees, consent orders, administrative order or other
orders, or other administrative of judicial requirements outstanding under any
Environmental Law with respect to the Projects of Borrower and its Subsidiaries.
(f) To the best knowledge of Borrower, there has been no release or
threat of release of Materials of Environmental Concern at or from the Projects of
Borrower and its Subsidiaries, or arising from or related to the operations of Borrower
and its Subsidiaries in connection with such Projects in violation of or in amounts or in
a manner that could give rise to liability under Environmental Laws.
5.20. Borrowing Base. As of the Agreement Execution Date, Schedule 7 is a
correct and complete list of the Initial Borrowing Base Properties, including all applicable
ownership information and:
(a) Each of the Borrowing Base Properties is not located in an area that has
been identified by the Secretary of Housing and Urban Development as an area having
special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of 1973,
as amended, or any successor law or, if any portion of the industrial
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buildings on such Properties are located within any such area, the applicable
Subsidiary Guarantor has obtained and will maintain through the Facility Termination
Date the insurance prescribed in Section 5.17 hereof.
(b) To Borrower’s knowledge, each of the Borrowing Base Properties and the
present use and occupancy thereof are in material compliance with all material
zoning ordinances (without reliance upon adjoining or other properties), health,
fire and building codes, land use laws (including those regulating parking) and
Environmental Laws (except as disclosed on the environmental assessments delivered
to the Administrative Agent pursuant to this Agreement) and other similar laws
(“Applicable Laws”).
(c) Each of the Borrowing Base Properties is served by all utilities required
for the current or contemplated use thereof.
(d) To Borrower’s knowledge, all public roads and streets necessary for service
of and access to each of the Borrowing Base Properties for the current or
contemplated use thereof have been completed, and are open for use by the public, or
appropriate insured private easements are in place.
(e) Except as disclosed in any property condition reports delivered by the
Administrative Agent, Borrower is not aware of any material latent or patent
structural or other significant deficiency of the Borrowing Base Properties. Each of
the Borrowing Base Properties is free of damage and waste that would materially and
adversely affect the value of such Borrowing Base Property, is in good condition and
repair and to Borrower’s knowledge there is no deferred maintenance other than
ordinary wear and tear. Each of the Borrowing Base Properties is free from damage
caused by fire or other casualty.
(f) To Borrower’s knowledge, all liquid and solid waste disposal, septic and
sewer systems located on the Borrowing Base Properties are in a good and safe
condition and repair and to Borrower’s knowledge, in material compliance with all
Applicable Laws with respect to such systems.
(g) To Borrower’s knowledge, all improvements on each Borrowing Base Property
lie within the boundaries and building restrictions of the legal description of
record of such Borrowing Base Property, no improvements encroach upon easements
benefiting the Borrowing Base Properties other than encroachments that do not
materially adversely affect the use or occupancy of the Borrowing Base Properties
and no improvements on adjoining properties encroach upon the Borrowing Base
Properties or upon easements benefiting the Borrowing Base Properties other than
encroachments that do not materially adversely affect the use or occupancy of the
Borrowing Base Properties.
(h) To Borrower’s knowledge, all Leases are in full force and effect. Borrower
is not in default under any Lease and Borrower has disclosed to Lenders in writing
any material default, of which Borrower has knowledge, under any Lease which demises
any material portion of the related Borrowing Base Property.
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(i) There are no material delinquent taxes, ground rents, water charges, sewer
rents, assessments, insurance premiums, leasehold payments, or other outstanding
charges affecting the Borrowing Base Properties except to the extent such items are
being contested in good faith by appropriate proceedings and as to which adequate
reserves have been provided and there is no risk of loss, forfeiture, or sale of any
interest in the Borrowing Base Properties during such proceedings. Each of the
Borrowing Base Properties is taxed separately without regard to any other property
not included in the Borrowing Base Properties.
(j) No condemnation proceeding or eminent domain action is pending or
threatened against any of the Borrowing Base Properties which would impair the use,
value, sale or occupancy of such Borrowing Base Property (or any portion thereof) in
any material manner.
(k) Each of the Borrowing Base Properties is not, nor is any direct or indirect
interest of Borrower or any Subsidiary Guarantor in any Borrowing Base Property or
in the Pledged Equity Interest with respect to any owner of a Borrowing Base
Property, subject to any Lien other than Permitted Liens set forth in clauses (i)
through (iv) of Section 6.14 or to any Negative Pledge (other than the Liens
and Negative Pledges created pursuant to this Agreement to secure the obligations of
Borrower and the Subsidiary Guarantors).
(l) The Collateral Assignment creates a valid first priority security interest
in the Pledged Equity Interests, subject only to Permitted Liens.
5.21. Intellectual Property.
(i) Parent Guarantor, Borrower and each of Borrower’s Subsidiaries owns or has the
right to use, under valid license agreements or otherwise, all material patents, licenses,
franchises, trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights (collectively, “Intellectual Property”) used in the conduct of their respective
businesses as now conducted and as contemplated by the Loan Documents, without known
conflict with any patent, license, franchise, trademark, trade secret, trade name,
copyright, or other proprietary right of any other Person.
(ii) Parent Guarantor, Borrower and each of Borrower’s Subsidiaries have taken all such
steps as they deem reasonably necessary to protect their respective rights under and with
respect to such Intellectual Property.
(iii) No claim has been asserted by any Person with respect to the use of any
Intellectual Property by Parent Guarantor, Borrower or any of Borrower’s Subsidiaries, or
challenging or questioning the validity or effectiveness of any Intellectual Property.
(iv) The use of such Intellectual Property by Parent Guarantor, Borrower and each of
Borrower’s Subsidiaries does not infringe on the rights of any Person, subject to such
claims and infringements as do not, in the aggregate, give rise to any liabilities on the
part of Borrower or any of Borrower’s Subsidiaries that could be reasonably expected to have
a Material Adverse Effect.
5.22. Broker’s Fees. No broker’s or finder’s fee, commission or similar compensation
will be payable with respect to the transactions contemplated hereby. Except as provided in the
Fee
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Letter, no other similar fees or commissions will be payable by any Lender for any other
services rendered to Parent Guarantor, Borrower, any of the Subsidiaries of Borrower or any other
Person ancillary to the transactions contemplated hereby.
5.23. No Bankruptcy Filing. Neither Parent Guarantor, Borrower nor any of Borrower’s
Subsidiaries is contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of its assets or property, and Borrower has no
knowledge of any Person contemplating the filing of any such petition against any of such Persons.
5.24. No Fraudulent Intent. Neither the execution and delivery of this Agreement or
any of the other Loan Documents nor the performance of any actions required hereunder or thereunder
is being undertaken by Parent Guarantor, Borrower or the Subsidiary Guarantors with or as a result
of any actual intent by any of such Persons to hinder, delay or defraud any entity to which any of
such Persons is now or will hereafter become indebted.
5.25. Transaction in Best Interests of Borrower and Subsidiary Guarantors;
Consideration. The transaction evidenced by this Agreement and the other Loan Documents is in
the best interests of Parent Guarantor, Borrower and the Subsidiary Guarantors. The direct and
indirect benefits to inure to Borrower and the Subsidiary Guarantors pursuant to this Agreement and
the other Loan Documents constitute substantially more than “reasonably equivalent value” (as such
term is used in §548 of the Bankruptcy Code) and “valuable consideration,” “fair value,” and “fair
consideration” (as such terms are used in any applicable state fraudulent conveyance law), in
exchange for the benefits to be provided by Borrower and the Subsidiary Guarantors pursuant to this
Agreement and the other Loan Documents, and but for the willingness of each Subsidiary Guarantor to
guaranty the Obligations, Borrower would be unable to obtain the financing contemplated hereunder
which financing will enable Borrower and its Subsidiaries to have available financing to conduct
and expand their business. Borrower and its Subsidiaries constitute a single integrated financial
enterprise and receive a benefit from the availability of credit under this Agreement.
5.26. Subordination. Borrower is not a party to or bound by any agreement, instrument
or indenture that may require the subordination in right or time of payment of any of the
Obligations to any other indebtedness or obligation of any such Persons.
5.27. Tax Shelter Representation. Borrower does not intend to treat the Loans, and/or
related transactions as being a “reportable transaction” (within the meaning of United States
Treasury Regulation Section 1.6011-4). In the event Borrower determines to take any action
inconsistent with such intention, it will promptly notify the Administrative Agent thereof. If
Borrower so notifies the Administrative Agent, Borrower acknowledges that one or more of the
Lenders may treat its Loans as part of a transaction that is subject to Treasury Regulation Section
301.6112-1, and such Lender or Lenders, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
5.28. Anti-Terrorism Laws.
(i) None of Parent Guarantor, Borrower and Borrower’s Subsidiaries is in violation of any laws or
regulations relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”) and
the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107-56.
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(ii) None of Parent Guarantor, Borrower and Borrower’s Subsidiaries, or any of their
brokers or other agents acting with respect to or benefiting from this Agreement is a
Prohibited Person. A “Prohibited Person” is any of the following:
(1) a person or entity that is listed in the Annex to, or is otherwise subject to
the provisions of, the Executive Order;
(2) a person or entity owned or controlled by, or acting for or on behalf of, any
person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the
Executive Order;
(3) a person or entity with whom any Lender is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;
(4) a person or entity who commits, threatens or conspires to commit or supports
“terrorism” as defined in the Executive Order; or
(5) a person or entity that is named as a “specially designated national and
blocked person” on the most current list published by the U.S. Treasury Department Office of
Foreign Asset Control at its official website or any replacement website or other replacement
official publication of such list.
(iii) None of Parent Guarantor, Borrower and Borrower’s Subsidiaries (1) conducts any
business or engages in making or receiving any contribution of funds, goods or services to
or for the benefit of any Prohibited Person, (2) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant to the
Executive Order, or (iii) engages in or conspires to engage in any transaction that evades
or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
None of Parent Guarantor, Borrower and Borrower’s Subsidiaries shall (1) conduct any business
or engage in making or receiving any contribution of funds, goods or services to or for the benefit
of any Prohibited Person, (ii) deal in, or otherwise engage in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order or any other
Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law (and Borrower shall deliver to Administrative Agent any
certification or other evidence requested from time to time by Administrative Agent in its
reasonable discretion, confirming Borrower’s compliance herewith).
5.29. Survival. All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of Parent Guarantor, Borrower or any of Borrower’s
Subsidiaries to the Administrative Agent or any Lender pursuant to or in connection with this
Agreement or any of the other Loan Documents (including, but not limited to, any such statement
made in or in connection with any amendment thereto or any statement contained in any certificate,
financial statement or other instrument delivered by or on behalf of Parent Guarantor, Borrower or
any of Borrower’s Subsidiaries prior to the Agreement Execution Date and delivered to the
Administrative Agent or any Lender in connection with closing the transactions contemplated hereby)
shall constitute representations and warranties made by Borrower under this Agreement. All such
representations and warranties shall survive the effectiveness of this Agreement, the execution
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and delivery of the Loan Documents and the making of the Loans and the issuance of the Letters of
Credit.
ARTICLE VI.
COVENANTS
During the term of this Agreement, unless the Required Lenders shall otherwise consent in
writing:
6.1. Financial Reporting. Borrower will maintain, for itself and each Subsidiary, on
a consolidated basis with Parent Guarantor, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not later than 45 days after the close of
each of the first three fiscal quarters of each year, for the Consolidated Group, an
unaudited consolidated balance sheet as of the close of each such period and the related
unaudited consolidated statements of income and retained earnings and of cash flows of the
Consolidated Group for such period and the portion of the fiscal year through the end of
such period, setting forth in each case in comparative form the figures for the previous
year, all certified by an Authorized Officer;
(ii) As soon as available, but in any event not later than 45 days after the close of
each fiscal quarter, for the Consolidated Group, the following reports in form and substance
reasonably satisfactory to the Administrative Agent, all certified by the Parent Guarantor’s
chief financial officer or chief accounting officer: an updated rent roll and operating
statement for each Borrowing Base Property and such other information on all Projects as may
be reasonably requested;
(iii) As soon as available, but in any event not later than 90 days after the close of
each fiscal year, for the Consolidated Group audited financial statements, including a
consolidated balance sheet as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year, without a “going concern”
or like qualification or exception, or qualification arising out of the scope of the audit,
prepared by independent certified public accountants of nationally recognized standing
reasonably acceptable to Administrative Agent;
(iv) Together with the quarterly and annual financial statements required hereunder, a
compliance certificate in substantially the form of Exhibit C hereto signed by an
Authorized Officer showing the calculations and computations necessary to determine
compliance with this Agreement and stating that, to such officer’s knowledge, no Default or
Unmatured Default exists, or if, to such officer’s knowledge, any Default or Unmatured
Default exists, stating the nature and status thereof;
(v)
As soon as possible and in any event within 10 days after receipt by an Authorized
Officer of Borrower, a copy of (a) any notice or claim to the effect that Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of the release by Borrower,
any of its Subsidiaries, or any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any violation of any federal, state
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or local environmental, health or safety law or regulation by Borrower or any of its
Subsidiaries, which, in either case, is reasonably expected to have a Material Adverse
Effect;
(vi) Promptly upon becoming aware of the same and to the extent Parent Guarantor,
Borrower, or any of its Subsidiaries, are aware of the same, notice of the commencement of
any proceeding or investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in any other
way relating adversely to, or adversely affecting, Parent Guarantor, Borrower, any of its
Subsidiaries or any of their respective properties, assets or businesses which involve
claims individually or in the aggregate in excess of $5,000,000, and notice of the receipt
of notice that any United States income tax returns of Parent Guarantor, Borrower or any of
its Subsidiaries are being audited;
(vii) Promptly upon becoming available, a copy of any amendment to a formation document
of Borrower;
(viii) Promptly upon becoming aware of the same, notice of any change in the senior
management of Parent Guarantor, Borrower, or any of its Subsidiaries, any change in the
business, assets, liabilities, financial condition, results of operations or business
prospects of Borrower, or any of its Subsidiaries which has or is reasonably be expected to
have a Material Adverse Effect, or any other event or circumstance which has had or is
reasonably be expected to have a Material Adverse Effect;
(ix) Promptly upon becoming aware of entry of the same, notice of any order, judgment
or decree in excess of $5,000,000 having been entered against Parent Guarantor, Borrower, or
any of its Subsidiaries or any of their respective properties or assets;
(x) Promptly upon receipt of the same, notice if Parent Guarantor, Borrower, or any of
its Subsidiaries shall receive any notification from any Governmental Authority alleging a
violation of any Applicable Law or any inquiry which is reasonably be expected to have a
Material Adverse Effect; and
(xi) Such other information (including, without limitation, financial statements for
Parent Guarantor, Borrower and non-financial information) as the Administrative Agent or any
Lender may from time to time reasonably request.
6.2. Use of Proceeds. Borrower will use the proceeds of the Advances to finance
Borrower’s or its Subsidiaries’ acquisition of Projects or for general corporate working capital
purposes. Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances (i) to purchase or carry any “margin stock” (as defined in Regulation U) if such usage
could constitute a violation of Regulation U by any Lender, (ii) to fund any purchase of, or offer
for, any Capital Stock of any Person, unless such Person has consented to such offer prior to any
public announcements relating thereto, or (iii) to make any Entity Acquisition other than a
Permitted Acquisition.
6.3. Notice of Default. Borrower will give, and will cause each of its Subsidiaries
to give, prompt notice in writing to the Administrative Agent and the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect.
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6.4. Conduct of Business. Parent Guarantor and Borrower will do, and will cause each
of their respective Subsidiaries to do, all things necessary to remain duly incorporated or duly
qualified, validly existing and in good standing as a real estate investment trust, corporation,
general partnership or limited partnership, as the case may be, in its jurisdiction of
incorporation/formation (except with respect to mergers permitted hereunder and Permitted
Acquisitions) and maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, in each jurisdiction in which any Project owned (or leased
pursuant to an Qualified Ground Lease) by it is located, and in each other jurisdiction in which
the character of its properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified is reasonably be expected to
have a Material Adverse Effect, and to carry on and conduct their businesses in substantially the
same manner as they are presently conducted where the failure to do so is reasonably be expected to
have a Material Adverse Effect and, specifically, neither Parent Guarantor, Borrower nor Borrower’s
Subsidiaries may undertake any business other than the acquisition, development, ownership,
management, operation and leasing of industrial properties, and ancillary businesses specifically
related to industrial properties. Parent Guarantor and Borrower shall, and shall cause each of
their respective Subsidiaries, to develop and implement such programs, policies and procedures as
are necessary to comply with the USA Patriot Act and shall promptly advise the Administrative Agent
in writing in the event that any of such Persons shall determine that any investors in such Persons
are in violation of such act.
6.5. Taxes. Parent Guarantor and Borrower will pay, and will cause each of their
respective Subsidiaries to pay, when due all taxes, assessments and governmental charges and levies
upon them of their income, profits or Projects, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves have been set aside.
6.6. Insurance. Borrower will, and will cause each of its Subsidiaries to, maintain
insurance which is consistent with the representation contained in Section 5.17 on all
their Projects and Borrower will furnish to any Lender upon reasonable request full information as
to the insurance carried.
6.7. Compliance with Laws. Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards
to which they may be subject, the violation of which is reasonably be expected to have a Material
Adverse Effect.
6.8. Maintenance of Properties. Borrower will, and will cause each of its
Subsidiaries to, do all things necessary to maintain, preserve, protect and keep their respective
Projects in good repair, working order and condition, ordinary wear and tear excepted.
6.9. Inspection. Borrower will, and will cause each of its Subsidiaries to, permit
the Lenders upon reasonable advance notice, by their respective representatives and agents, to
inspect during regular business hours any of the Projects, corporate books and financial records of
Borrower and each of their respective Subsidiaries, to examine and make copies of the books of
accounts and other financial records of Parent Guarantor, Borrower and each of their respective
Subsidiaries, and to discuss the affairs, finances and accounts of Parent Guarantor, Borrower and
each of its Subsidiaries with officers thereof, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Lenders may designate.
6.10. Maintenance of Status; Modification of Formation Documents. Parent Guarantor
shall at all times maintain its status as a self-directed, self-administered real estate
investment trust in
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compliance with all applicable provisions of the Code relating to such status.
Neither Parent Guarantor nor Borrower shall amend any of its articles of incorporation, limited
liability company agreements, or by-laws, as applicable, without the prior written consent of the
Administrative Agent
in a manner that is reasonably expected to have a Material Adverse Effect. Parent Guarantor
and Borrower shall not, and shall not permit any Subsidiary of Borrower to, enter into any
amendment or modification of any formation documents of Borrower or such Subsidiary which would
have a Material Adverse Effect.
6.11. Dividends. Provided there is no then-existing Default hereunder with respect to
the payment of any of the Obligations, Parent Guarantor shall be permitted to declare and pay
dividends on its Capital Stock from time to time in amounts determined by Parent Guarantor,
provided, however, that in no event shall Parent Guarantor declare or pay dividends
on its Capital Stock or make distributions with respect thereto (including dividends paid and
distributions actually made with respect to gains on property sales and any Preferred Dividends as
Parent Guarantor may be contractually required to make from time to time) if such dividends and
distributions paid on account of any fiscal year of Parent Guarantor, in the aggregate for such
period, would exceed (A) 110% of Funds from Operations for the first fiscal year of Parent
Guarantor ending after the Agreement Execution Date, (B) 100% of Funds from Operations for the
second fiscal year of Parent Guarantor ending after the Agreement Execution Date and (C) 95% of
Funds From Operations for each fiscal year of Parent Guarantor thereafter. Notwithstanding
anything to the contrary contained in this Agreement, including, without limitation, this
Section 6.11, Parent Guarantor shall be permitted at all times to distribute whatever
amount of dividends is necessary to maintain its tax status as a real estate investment trust.
6.12. Merger; Sale of Assets. Borrower will not, nor will it permit any of its
Subsidiaries to, without prior notice to the Administrative Agent and without providing a
certification of compliance with the Loan Documents enter into any merger (other than mergers in
which such entity is the survivor and mergers of Subsidiaries (but not Borrower) as part of
transactions that are Permitted Acquisitions provided that following such merger the target entity
becomes a Wholly-Owned Subsidiary of Borrower), consolidation, reorganization or liquidation or
transfer or otherwise dispose of all or a Substantial Portion of their Properties, except for (a)
such transactions that occur between Wholly-Owned Subsidiaries or between Borrower and a
Wholly-Owned Subsidiary and (b) mergers solely to change the jurisdiction of organization of a
Subsidiary Guarantor, provided that, in any event, approval in advance by the Required Lenders
shall be required for transfer or disposition in any quarter of assets with an aggregate value
greater than 15% of Consolidated Gross Asset Value, or any merger of the Parent Guarantor, Company
or Subsidiary into another operating entity which would result in an increase to the Consolidated
Gross Asset Value of more than 50%.
6.13. Subsidiary Guarantors.
Borrower shall cause each of its existing Wholly-Owned Subsidiaries which owns a
Borrowing Base Property, as identified on Schedule 5 attached hereto and made a part hereof, to
execute and deliver to the Administrative Agent the Subsidiary Guaranty. Borrower shall cause each Wholly-Owned
Subsidiary which hereafter owns a Borrowing Base Property to execute and deliver to the Administrative Agent a
joinder in the Subsidiary Guaranty in the form of Exhibit A attached to the form of Subsidiary Guaranty. Borrower
covenants and agrees that each such Subsidiary which it shall cause to execute the Subsidiary Guaranty shall be fully
authorized to do so by its supporting organizational and authority documents and shall be in good standing in its state
of organization and shall have obtained any necessary foreign qualifications required to conduct its business.
The delivery by Borrower to the Administrative Agent of any such joinder shall be deemed a representation and
warranty by Borrower that each Subsidiary which Borrower caused to execute the Subsidiary Guaranty has been fully
authorized to do so by its
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supporting organizational and authority
documents and is in good standing in its state of organization and has obtained any necessary foreign
qualifications required to conduct its business. If any Subsidiary Guarantor proposes to incur Secured
Indebtedness or sell or contribute all of its assets or otherwise desires to be released from its obligations
under the Subsidiary Guaranty,
then such Subsidiary Guarantor will be released from its obligations under the Subsidiary Guaranty
subject in each case to compliance with the applicable restrictions
and other provisions of Section 2.22(iii),. The
Administrative Agent shall execute and deliver to Borrower a release of the Pledged Equity Interests such Subsidiary
from the Collateral Assignment, upon receipt by the Administrative Agent of all amounts required to be paid under
Section 2.22(iii) above. Such release shall become effective upon the date that such Subsidiary complies with the
provisions of Section 2.22(iii) of this Agreement.
6.14. Sale and Leaseback. Borrower will not, nor will it permit any of its
Subsidiaries to, sell or transfer a Borrowing Base Property in order to concurrently or
subsequently lease such Property as lessee.
6.15. Acquisitions and Investments. Borrower will not, nor will it permit any
Subsidiary of Borrower to, make or suffer to exist any Investments (including without limitation,
loans and advances to, and other Investments in, Subsidiaries of Borrower), or commitments
therefor, or become or remain a partner in any partnership or joint venture, or to make any Entity
Acquisition of any Person, except:
(i) Cash Equivalents;
(ii) Investments in existing Subsidiaries of Borrower, Investments in Subsidiaries of
Borrower formed for the purpose of developing or acquiring industrial properties, or
Investments in existing or newly formed joint ventures and partnerships engaged solely in
the business of purchasing, developing, owning, operating, leasing and managing industrial
properties;
(iii) transactions permitted pursuant to Section 6.12;
(iv) Investments permitted pursuant to Section 6.23; and
(v) Entity Acquisitions of Persons whose primary operations consist of the ownership,
development, operation and management of industrial properties;
provided that, after giving effect to such Entity Acquisitions and Investments, Borrower continues
to comply with all its covenants herein. Entity Acquisitions permitted pursuant to this
Section 6.15 shall be deemed to be “Permitted Acquisitions”.
6.16. Liens. Borrower will not, nor will it permit any of its Subsidiaries to,
create, incur, or suffer to exist any Lien in, of or on the Property of 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 shall have been set aside on its books;
(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
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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 workers’ compensation laws,
unemployment insurance, old age pensions, or other social security or retirement benefits,
or similar legislation;
(iv) Easements, 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 Borrower or its Subsidiaries; and
(v) Liens other than Liens described in subsections (i) through (iv) above arising in
connection with any Indebtedness permitted hereunder to the extent such Liens will not
result in a Default in any of Borrower’s covenants herein.
Liens permitted pursuant to this Section 6.16 shall be deemed to be “Permitted
Liens”.
6.17. Affiliates. Borrower will not, nor will it permit any of its Subsidiaries 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 Borrower’s or such Subsidiary’s business
and upon fair and reasonable terms no less favorable to Borrower or such Subsidiary than Borrower
or such Subsidiary would obtain in a comparable arms-length transaction.
6.18. Swap Contracts. Borrower will not enter into or remain liable upon, nor will it
permit any Subsidiary to enter into or remain liable upon, any Swap Contract, except to the extent
required to protect Borrower and its Subsidiaries against increases in interest payable by them
under variable interest Indebtedness.
6.19. Variable Interest Indebtedness. Borrower and its Subsidiaries shall not at any
time permit the outstanding principal balance of Consolidated Total Indebtedness which bears
interest at an interest rate that is not fixed through the maturity date of such Indebtedness to
exceed the greater of (i) the then-current Aggregate Commitment or (ii) twenty-five percent (25%)
of Consolidated Gross Asset Value, unless all of such Indebtedness in excess of such amount is
subject to a Swap Contract approved by the Administrative Agent that effectively converts the
interest rate on such excess to a fixed rate.
6.20. Consolidated Tangible Net Worth. Borrower on a consolidated basis with Parent
Guarantor and Borrower’s Subsidiaries shall maintain a Consolidated Tangible Net Worth of not less
than $145,000,000 plus eighty percent (80%) of the equity contributions or sales of Capital Stock
received by Parent Guarantor, Borrower or any of Borrower’s Subsidiaries after the Agreement
Execution Date.
6.21. Indebtedness and Cash Flow Covenants. Borrower on a consolidated basis with
Parent Guarantor and Borrower’s Subsidiaries shall not permit:
(i) the Borrowing Base Leverage Ratio to be greater than fifty percent (50%) at any
time, unless Borrower cures such event as described and within the time period permitted
under Section 2.8(b);
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(ii) the Borrowing Base Debt Service Coverage to be less than 1.60 to 1.00, at any
time, unless Borrower cures such event as described and within the time period permitted
under Section 2.8(b);
(iii) Consolidated Total Indebtedness to be more than 0.60 times Consolidated Gross
Asset Value at any time;
(iv) Adjusted EBITDA to be less than 1.75 times Consolidated Fixed Charges at any time;
(v) any Recourse Indebtedness to exist, other than the Obligations under this Agreement
and up to $50,000,000 in the aggregate of other Recourse Indebtedness;
6.22. Environmental Matters. Borrower and its Subsidiaries shall:
(a) Comply with, and use all reasonable efforts to ensure
compliance by all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply with and maintain, and use all reasonable efforts to
ensure that all tenants and subtenants obtain and comply with and maintain, any and
all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that failure to do so is not be
reasonably expected to have a Material Adverse Effect; provided that in no event
shall Borrower or its Subsidiaries be required to modify the terms of leases, or
renewals thereof, with existing tenants (i) at Projects owned by Borrower or its
Subsidiaries as of the date hereof, or (ii) at Projects hereafter acquired by
Borrower or its Subsidiaries as of the date of such acquisition, to add provisions
to such effect.
(b) 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 regarding Environmental Laws, except to
the extent that (i) the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings is not be reasonably expected to
have a Material Adverse Effect, or (ii) Borrower has determined in good faith that
contesting the same is not in the best interests of Borrower and its Subsidiaries
and the failure to contest the same is not be reasonably expected to have a Material
Adverse Effect.
(c) Defend, indemnify and hold harmless Administrative Agent and
each Lender, and their respective officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
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 Borrower, its
Subsidiaries or their Projects (excluding loss arising from actions taken by the
owner of any Borrowing Base Property [or any other person who is not an Affiliate of
the Borrower] from and after the date on which the Pledged Equity Interests in the
Subsidiary Guarantor owing such Borrowing Base Property have been sold pursuant to
the exercise of the Lenders’ rights under the Collateral Assignment) or any orders,
requirements or demands of Governmental Authorities related thereto, including,
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without limitation, 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.
(d) Prior to the acquisition of a new Project after the Agreement
Execution Date, perform or cause to be performed an environmental investigation
which investigation shall include preparation of a “Phase I” report and, if
appropriate in Borrower’s reasonable discretion, a “Phase II” report, in each case
prepared by a recognized environmental engineer in accordance with customary
standards which discloses that the such Project is not in violation of the
representations and covenants set forth in this Agreement, unless such violation has
been disclosed in writing to the Administrative Agent and remediation actions
satisfactory to the Administrative Agent are being taken and at a minimum comply
with all the specifications and procedures attached hereto as Exhibit H. In
connection with any such investigation, Borrower shall cause to be prepared a report
of such investigation, to be made available to any Lenders upon reasonable request,
for informational purposes and to assure compliance with the specifications and
procedures.
6.23. Permitted Investments.
(a) The Consolidated Group’s aggregate Investment in Investment
Affiliates and (valued at the greater of the cash investment in that entity by the
Consolidated Group or the portion of Consolidated Gross Asset Value attributable to
such entity or its assets, as the case may be) shall not at any time exceed fifteen
percent (15%) of Consolidated Gross Asset Value.
(b) The Consolidated Group’s aggregate Investment in Construction
in Progress (with each asset valued at its cost basis) shall not at any time exceed
ten percent (10%) of Consolidated Gross Asset Value.
(c) The Consolidated Group’s aggregate Investment in Unimproved
Land (with each asset valued at its cost basis) shall not at any time exceed five
percent (5%) of Consolidated Gross Asset Value.
(d) The Consolidated Group’s aggregate Investment in Unimproved
Land and Drop Lots (with each asset valued at its cost basis), in the aggregate,
shall not at any time exceed fifteen percent (15%) of Consolidated Gross Asset
Value.
(e) Notwithstanding the foregoing individual limitations by type of
asset, the Consolidated Group’s Investment in the above items (a)-(d) in the
aggregate shall not at any time exceed twenty percent (20%) of Consolidated Gross
Asset Value.
6.24. Lease Approvals. Provided no Default shall have occurred and be continuing
hereunder, Borrower may permit any Subsidiary of Borrower to enter into, modify or amend any Lease
without the prior written consent of any Lender, provided such proposed Lease (a) provides for
rental rates and terms comparable to existing local market rates and terms (taking into account the
type and quality of the tenant, the length of term and the location and the amount of space rented)
as of the date of such Lease is executed by the applicable Subsidiary and (b) is an arm’s length
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transaction with a bona fide independent third-party tenant whose identity and
creditworthiness are appropriate for a property comparable to the applicable Project. Borrower may
also permit any Subsidiary of Borrower to modify, amend or terminate any Lease without the prior
approval of any Lender, provided, however, in the event that any such Subsidiary terminates a
Lease, any termination fee shall be reserved by such Subsidiary and used for future leasing
commission and tenant inducement costs in connection with reletting such space.
6.25. Prohibited Encumbrances. Borrower agrees that neither Borrower nor any other
member of the Consolidated Group shall (i) create a Lien against any Project other than a single
first-priority mortgage or deed of trust, (ii) create a Lien on any Capital Stock or other
ownership interests in any member of the Consolidated Group or any Investment Affiliate (other than
(A) Liens securing the Facility Obligations as provided herein or (B) Liens against the Capital
Stock or other ownership interests in any Subsidiary which owns only one or more Projects
encumbered by a Lien permitted under clause (i) of this Section 6.25 in favor of the holder
of the Lien against such Project), or (iii) enter into or be subject to any agreement governing any
Indebtedness which constitutes a Negative Pledge (other than restrictions on further subordinate
Liens on Projects or ownership interests therein permitted to be encumbered under clauses (i) or
(ii) of this Section 6.25).
6.26. Further Assurances. Borrower shall, at Borrower’s cost and expense and upon
request of the Administrative Agent, execute and deliver or cause to be executed and delivered, to
the Administrative Agent such further instruments, documents and certificates, and do and cause to
be done such further acts that may be reasonably necessary or advisable in the reasonable opinion
of the Administrative Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
6.27. Distribution of Income to Borrower. Borrower shall cause all of its
Subsidiaries to promptly distribute to Borrower (but not less frequently than once each fiscal
quarter of Borrower unless otherwise approved by the Administrative Agent), whether in the form of
dividends, distributions or otherwise, all profits, proceeds or other income relating to or arising
from such Subsidiaries’ use, operation, financing, refinancing, sale or other disposition of their
respective assets and properties after (a) the payment by each such Subsidiary of its debt service
and operating expenses for such quarter and (b) the establishment of reasonable reserves for the
payment of operating expenses not paid on at least a quarterly basis and capital improvements to be
made to such Subsidiary’s assets and properties approved by such Subsidiary in the ordinary course
of business consistent with its past practices or (c) funding of reserves required by the terms of
any deed of trust, mortgage or similar lien encumbering any Projects of such Subsidiary.
ARTICLE VII.
DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
7.1. Nonpayment of any principal payment on any Note when due.
7.2. Nonpayment of interest upon any Note or of any facility fee or other payment Obligations
under any of the Loan Documents within five (5) Business Days after the same becomes due.
7.3. The breach of any of the terms or provisions of Article VI.
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7.4. Any representation or warranty made or deemed made by or on behalf of Parent Guarantor,
Borrower or any of Borrower’s Subsidiaries to the Lenders or the Administrative Agent under or in
connection with this Agreement, any Loan, or any material certificate or information delivered in
connection with this Agreement or any other Loan Document shall be false on the date as of which
made the result of which is reasonably expected to have a Material Adverse Effect; provided,
however, if such untrue representation and warranty is susceptible of being cured, upon the same
not being cured within thirty (30) days of receipt of notice from the Administrative Agent.
7.5. The breach by Borrower (other than a breach which constitutes a Default under Section
7.1, 7.2, 7.3 or 7.4) of any of the terms or provisions of this
Agreement which is not remedied within fifteen (15) days after written notice from the
Administrative Agent, or if such breach is not susceptible of being so remedied using commercially
reasonable efforts within such fifteen (15)day period and so long as Borrower shall have commenced
and shall thereafter diligently pursue cure of the same, such fifteen (15) day period shall be
extended for such time as is reasonably necessary for Borrower to remedy such breach, such
additional period not to exceed ninety (90) days.
7.6. Failure of Parent Guarantor, Borrower or any of Borrower’s Subsidiaries to pay when due
any Recourse Indebtedness in excess of $1,000,000 in the aggregate or any other Consolidated
Outstanding Indebtedness (other than the Obligations hereunder and Indebtedness under Swap
Contracts) in excess of $10,000,000 in the aggregate (collectively, “Material
Indebtedness”); or the default by Parent Guarantor, Borrower or any of Borrower’s Subsidiaries
in the performance of any term, provision or condition contained in any agreement, or any other
event shall occur or condition exist, which causes or permits any such Material Indebtedness to be
due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or, under any Swap Contract, the occurrence of an “Early Termination
Date” (as defined in such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which Parent Guarantor, Borrower or any Subsidiary of Borrower is the Defaulting
Party (as defined in such Swap Contract) or (B) any “Termination Event” (as so defined) under such
Swap Contract as to which Parent Guarantor, Borrower or any Subsidiary of Borrower is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by Parent Guarantor,
Borrower or such Subsidiary of Borrower as a result thereof is greater than $1,000,000.
7.7. Parent Guarantor, Borrower, or any Subsidiary of Borrower shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or hereafter in effect,
(ii) make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against it, (v) take any
corporate action to authorize or effect any of the foregoing actions set forth in this Section
7.7, (vi) fail to contest in good faith any appointment or proceeding described in Section
7.8 or (vii) admit in writing its inability to pay its debts generally as they become due.
7.8. A receiver, trustee, examiner, liquidator or similar official shall be appointed for
Parent Guarantor, Borrower or any Subsidiary of Borrower or for any Substantial Portion of the
Property of Parent Guarantor, Borrower or such Subsidiary, or a proceeding described in Section
7.7(iv) shall be instituted against Parent Guarantor, Borrower or any such Subsidiary and such
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appointment continues undischarged or such proceeding continues undismissed or unstayed for a
period of ninety (90) consecutive days.
7.9. Parent Guarantor, Borrower or any of the Subsidiary Guarantors shall fail within sixty
(60) days to pay, bond or otherwise discharge any judgments, warrants, writs of attachment,
execution or similar process or orders for the payment of money in an amount which, when added to
all other judgments, warrants, writs, executions, processes or orders outstanding against Parent
Guarantor, Borrower or any of the Subsidiary Guarantors would exceed $10,000,000 in the aggregate,
which have not been stayed on appeal or otherwise appropriately contested in good faith.
7.10. Borrower or any other member of the Controlled Group shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred withdrawal liability to such Multiemployer
Plan in an amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires payments exceeding
$500,000 per annum.
7.11. Borrower or any other member of the Controlled Group shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of Borrower and the other members of the Controlled
Group (taken as a whole) to all Multiemployer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed to such Multiemployer Plans
for the respective plan years of each such Multiemployer Plan immediately preceding the plan year
in which the reorganization or termination occurs by an amount exceeding $500,000.
7.12. Failure to remediate within the time period permitted by law or governmental order,
after all administrative hearings and appeals have been concluded (or within a reasonable time in
light of the nature of the problem if no specific time period is so established), environmental
problems at Properties owned by Borrower or any of its Subsidiaries or Investment Affiliates that
are reasonably expected to have a Material Adverse Effect.
7.13. The occurrence of any “Default” as defined in any Loan Document or the breach of any of
the terms or provisions of any Loan Document, which default or breach continues beyond any period
of grace therein provided.
7.14. Any Change of Control shall occur.
7.15. Any Change in Management shall occur.
7.16. A federal tax lien shall be filed against Parent Guarantor, Borrower or any of Borrower’s
Subsidiaries under Section 6323 of the Code or a lien of the PBGC shall be filed against Parent
Guarantor, Borrower or any of Borrower’s Subsidiaries under Section 4068 of ERISA and in either
case such lien shall remain undischarged (or otherwise unsatisfied) for a period of sixty (60) days
after the date of filing.
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ARTICLE VIII.
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Sections 7.7 or 7.8 occurs with
respect to Borrower, the obligations of the Lenders to make Loans and to issue Facility Letters of
Credit hereunder shall automatically terminate and the Facility Obligations shall immediately
become due and payable without any election or action on the part of the Administrative Agent or
any Lender. If any other Default occurs, so long as a Default exists Lenders shall have no
obligation to make any Loans and the Required Lenders, at any time prior to the date that such
Default has been fully cured, may permanently terminate the obligations of the Lenders to make
Loans hereunder and declare the Facility Obligations to be due and payable, or both, whereupon if
the Required Lenders elected to accelerate (i) the Facility Obligations shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all of which Borrower
hereby expressly waives and (ii) if any automatic or optional acceleration has occurred, the
Administrative Agent, as directed by the Required Lenders (or if no such direction is given within
30 days after a request for direction, as the Administrative Agent deems in the best interests of
the Lenders, in its sole discretion), shall use its good faith efforts to collect, including
without limitation, by filing and diligently pursuing judicial action, all amounts owed by Borrower
and any Subsidiary Guarantor under the Loan Documents.
In addition to the foregoing, following the occurrence of a Default and so long as any
Facility Letter of Credit has not been fully drawn and has not been cancelled or expired by its
terms, upon demand by the Required Lenders Borrower shall deposit in the Letter of Credit
Collateral Account cash in an amount equal to the aggregate undrawn face amount of all outstanding
Facility Letters of Credit and all fees and other amounts due or which may become due with respect
thereto. Borrower shall have no control over funds in the Letter of Credit Collateral Account and
shall not be entitled to receive any interest thereon. Such funds shall be promptly applied by the
Administrative Agent to reimburse the Issuing Bank for drafts drawn from time to time under the
Facility Letters of Credit and associated issuance costs and fees. Such funds, if any, remaining
in the Letter of Credit Collateral Account following the payment of all Facility Obligations in
full shall, unless the Administrative Agent is otherwise directed by a court of competent
jurisdiction, be promptly paid over to Borrower.
If, within 10 days after acceleration of the maturity of the Facility Obligations or
termination of the obligations of the Lenders to make Loans hereunder as a result of any Default
(other than any Default as described in Sections 7.7 or 7.8 with respect to
Borrower) and before any judgment or decree for the payment of the Facility Obligations due shall
have been obtained or entered, all of the Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to Borrower, rescind and annul such acceleration and/or
termination.
8.2. Amendments. Subject to the provisions of this Article VIII the Required
Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and
Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the Lenders or Borrower
hereunder or waiving any Default hereunder; provided, however, that no such supplemental agreement
or waiver shall, without the consent of all Lenders:
(i) Extend the Facility Termination Date, or forgive all or any portion of the
principal amount of any Loan or accrued interest thereon or of the Facility Letter of Credit
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Obligations or of the Unused Fee, reduce the Applicable Margins (or modify any
definition herein which would have the effect of reducing the Applicable Margins) or the
underlying interest rate options or extend the time of payment of any such principal,
interest or fees.
(ii) Release any Pledged Equity Interest, release the Parent Guarantor from the Parent
Guaranty or release any Subsidiary Guarantor from the Subsidiary Guaranty, except as
permitted in Section 2.22(iii) and Section 6.13.
(iii) Reduce the percentage specified in the definition of Required Lenders.
(iv) Increase the Aggregate Commitment beyond $150,000,000.
(v) Permit Borrower to assign its rights under this Agreement.
(vi) Amend Sections 8.1, 8.2 or 11.2.
No amendment of any provision of this Agreement relating to the Administrative Agent shall be
effective without the written consent of the Administrative Agent.
8.3. Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the terms, conditions or provisions
of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 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 Administrative Agent and the Lenders until the Obligations have been paid
in full.
8.4. Application of Funds. After the acceleration of the Facility Obligations as
provided for in Section 8.1 (or after the Facility Obligations have automatically become
immediately due and payable and Borrower has been required to make a deposit in the Letter of
Credit Collateral Account as set forth in Section 8.1), any amounts received on account of
the Obligations shall be applied by the Administrative Agent in the following order:
(i) to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including attorney costs and amounts payable under Article
III) payable to the Administrative Agent in its capacity as such;
(ii) to payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders and the Issuing Bank and
amounts payable under Article III), ratably among them in proportion to the amounts
described in this clause (ii) payable to them;
(iii) to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans, Facility Letter of Credit Reimbursement Obligations and other
Obligations, ratably among the Lenders and the Issuing Bank in proportion to the respective
amounts described in this clause (iii) payable to them;
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(iv) to payment of that portion of the Obligations constituting unpaid principal of the
Loans and Facility Letter of Credit Reimbursement Obligations and to deposit in the Letter
of Credit Collateral Account the undrawn amounts of Letters of Credit, ratably among the
Lenders, and the Issuing Bank in proportion to the respective amounts described in this
clause (iv) held by them;
(v) to payment of that portion of the Obligations constituting Related Swap
Obligations ratably among the Lenders and Affiliates of Lenders holding such Related Swap
Obligations in proportion to the respective amounts described in this clause (v) held by
them; and
(vi) the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to Borrower or as otherwise required by Law.
ARTICLE IX.
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of Borrower
contained in this Agreement shall survive delivery of the Notes and the making of the Loans herein
contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to Borrower in violation of any
limitation or prohibition provided by any applicable statute or regulation.
9.3. Taxes. Any taxes (excluding taxes on the overall net income of any Lender) or
other similar assessments or charges made by any governmental or revenue authority in respect of
the Loan Documents shall be paid by Borrower, together with interest and penalties, if any.
9.4. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions of the Loan
Documents.
9.5. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among Borrower, the Administrative Agent and the Lenders and supersede all prior
commitments, agreements and understandings among Borrower, the Administrative Agent and the Lenders
relating to the subject matter thereof.
9.6. Several Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Administrative Agent is authorized to act as such). The
failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.
9.7. Expenses; Indemnification. Borrower shall reimburse the Administrative Agent for
any costs, internal charges and out-of-pocket expenses (including, without limitation, all
reasonable fees for consultants and fees and reasonable expenses for attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative Agent) paid or
incurred by the Administrative Agent in connection with the amendment, modification, and
enforcement of the Loan Documents. Borrower also agrees to reimburse the Administrative Agent and
the Lenders for any
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reasonable costs, internal charges and out-of-pocket expenses (including, without limitation,
all fees and reasonable expenses for attorneys for the Administrative Agent and the Lenders, which
attorneys may be employees of the Administrative Agent or the Lenders) paid or incurred by the
Administrative Agent or any Lender in connection with the collection and enforcement of the Loan
Documents (including, without limitation, any workout). Borrower further agrees to indemnify the
Administrative Agent, each Lender and their Affiliates, and their directors and officers against
all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without
limitation, all fees and reasonable expenses for attorneys of the indemnified parties, all expenses
of litigation or preparation therefor whether or not the Administrative Agent, or any Lender 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 Projects, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder, except to the extent
that any of the foregoing arise out of the gross negligence or willful misconduct of the party
seeking indemnification therefor. The obligations of Borrower under this Section shall survive the
termination of this Agreement.
9.8. Numbers of Documents. All statements, notices, closing documents, and requests
hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.
9.9. Accounting. Except as provided to the contrary herein, all accounting terms used
herein shall be interpreted and all accounting determinations hereunder shall be made in accordance
with GAAP.
9.10. Severability of Provisions. Any provision in any Loan Document that is held to
be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
9.11. Nonliability of Lenders. The relationship between Borrower, on the one hand,
and the Lenders and the Administrative Agent, on the other, shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any fiduciary responsibilities
to Borrower. Neither the Administrative Agent nor any Lender undertakes any responsibility to
Borrower to review or inform Borrower of any matter in connection with any phase of Borrower’s
business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY
EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR OHIO STATE COURT SITTING IN CLEVELAND IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND 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
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COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY
LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
SHALL BE BROUGHT ONLY IN A COURT IN CLEVELAND, OHIO.
9.14. WAIVER OF JURY TRIAL. BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE X.
THE ADMINISTRATIVE AGENT
10.1. Appointment. KeyBank National Association, is hereby appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders irrevocably authorizes
the Administrative Agent to act as the agent of such Lender. The Administrative Agent agrees to
act as such upon the express conditions contained in this Article X. Notwithstanding the
use of the defined term “Administrative Agent,” it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender by reason of this
Agreement or any other Loan Document and that the Administrative 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 Administrative 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 Ohio 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 Administrative Agent on any agency theory or any other theory of liability for breach
of fiduciary duty, all of which claims each Lender hereby waives.
10.2. Powers. The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The Administrative Agent
shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action
thereunder except any action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
10.3. General Immunity. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable to Borrower, the Lenders or any Lender for (i) any
action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except for its or their own gross negligence or willful
misconduct; or (ii) any determination by the Administrative Agent that compliance with any law or
any
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governmental or quasi-governmental rule, regulation, order, policy, guideline or directive
(whether or not having the force of law) requires the Advances and Commitments hereunder to be
classified as being part of a “highly leveraged transaction”.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be responsible for or have any duty
to ascertain, inquire into, or verify (i) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each Lender; (iii) the
satisfaction of any condition specified in Article IV, except receipt of items required to
be delivered to the Administrative Agent; (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection therewith; (v) the value,
sufficiency, creation, perfection, or priority of any interest in any collateral security; or (vi)
the financial condition of Borrower or any Subsidiary Guarantor. Except as otherwise specifically
provided herein, the Administrative Agent shall have no duty to disclose to the Lenders information
that is not required to be furnished by Borrower to the Administrative Agent at such time, but is
voluntarily furnished by Borrower to the Administrative Agent (either in its capacity as
Administrative 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 Administrative 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 Administrative Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Administrative Agent may execute any of
its duties as Administrative Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the Lenders, except as to
money or securities received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning all matters pertaining to the agency hereby
created and its duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Administrative Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram, statement, paper or
document believed by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative Agent.
10.8. Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Administrative Agent ratably in proportion to their respective
Commitments (i) for any amounts not reimbursed by Borrower for which the Administrative Agent is
entitled to reimbursement by Borrower under the Loan Documents, (ii) for any other expenses
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incurred by the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan Documents, if not paid
by Borrower and (iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in 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 Administrative Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of the Lenders), or the enforcement of
any of the terms thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or willful misconduct
or a breach of the Administrative Agent’s express obligations and undertakings to the Lenders which
is not cured after written notice and within the period described in Section 10.3, The
obligations of the Lenders and the Administrative Agent under this Section 10.8 shall
survive payment of the Obligations and termination of this Agreement.
10.9. Rights as a Lender. In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the Administrative Agent,
and the term “Lender” or “Lenders” shall, at any time when the Administrative Agent is a Lender,
unless the context otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent 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 Borrower or any of its Subsidiaries in which Borrower or
such Subsidiary is not restricted hereby from engaging with any other Person. The Administrative
Agent, in its individual capacity, is not obligated to remain a Lender.
10.10. Lender Credit Decision. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and based on the financial
statements prepared by Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement and the other Loan Documents.
10.11. Successor Administrative Agent. Except as otherwise provided below, KeyBank
National Association shall at all times serve as the Administrative Agent during the term of this
Facility. The Administrative Agent may resign at any time by giving written notice thereof to the
Lenders and Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been appointed, forty-five days
after the retiring Administrative Agent gives notice of its intention to resign. If the
Administrative Agent shall be grossly negligent in the performance of its obligations hereunder,
the Administrative Agent may be removed by written notice received by the Administrative Agent from
all Lenders holding 66 2/3% of that portion of the Aggregate Commitment not held by the
Administrative Agent, such removal to be effective on the date specified by the other Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of Borrower and the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders within thirty days after
the resigning Administrative Agent’s giving notice of its intention to resign, then the resigning
Administrative Agent may appoint, on
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behalf of Borrower and the Lenders, a successor Administrative Agent. Notwithstanding
the previous sentence, the Administrative Agent may at any time without the consent of Borrower or
any Lender, appoint any of its Affiliates which is a commercial bank as a successor Administrative
Agent hereunder. If the Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties of the
Administrative Agent hereunder and Borrower shall make all payments in respect of the Obligations
to the applicable Lender and for all other purposes shall deal directly with the Lenders. No
successor Administrative Agent shall be deemed to be appointed hereunder until such successor
Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall
be a commercial bank having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the resigning or removed Administrative Agent. Upon
the effectiveness of the resignation or removal of the Administrative Agent, the resigning or
removed Administrative 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
Administrative Agent, the provisions of this Article X shall continue in effect for the
benefit of such Administrative Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent hereunder and under the other Loan Documents.
10.12. Notice of Defaults. If a Lender becomes aware of a Default or Unmatured
Default, such Lender shall notify the Administrative Agent of such fact provided that the failure
to give such notice shall not create liability on the part of a Lender. Upon receipt of such
notice that a Default or Unmatured Default has occurred, the Administrative Agent shall notify each
of the Lenders of such fact.
10.13. Requests for Approval. If the Administrative Agent requests in writing the
consent or approval of a Lender, such Lender shall respond and either approve or disapprove
definitively in writing to the Administrative Agent within ten (10) Business Days (or sooner if
such notice specifies a shorter period for responses based on Administrative Agent’s good faith
determination that circumstances exist warranting its request for an earlier response) after such
written request from the Administrative Agent. Notwithstanding anything to the contrary contained
herein, the failure of a Lender to respond with such a written approval or disapproval within such
time period shall not result in such Lender becoming a Defaulting Lender.
10.14. Defaulting Lenders. At such time as a Lender becomes a Defaulting Lender, such
Defaulting Lender’s right to vote on matters which are subject to the consent or approval of the
Required Lenders, each affected Lender or all Lenders shall be immediately suspended until such
time as the Lender is no longer a Defaulting Lender, except that the amount of the Commitment of
the Defaulting Lender may not be changed without its consent. 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 share of such Advance, all Obligations owing to such Defaulting Lender hereunder
shall be subordinated in right of payment, as provided in the following sentence, to the prior
payment in full of all principal of, interest on and fees relating to the Loans funded by the other
Lenders in connection with any such Advance in which the Defaulting Lender has not funded its pro
rata share (such principal, interest and fees being referred to as “Senior Loans” for the purposes
of this section). All amounts paid by Borrower or the Guarantor and otherwise due to be applied to
the Obligations owing to such Defaulting Lender pursuant to the terms hereof shall be distributed
by the Administrative Agent to the other Lenders in accordance with their respective pro rata
shares (recalculated for the purposes hereof to exclude the Defaulting Lender) until all Senior
Loans have
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been paid in full. After the Senior Loans have been paid in full equitable adjustments will
be made in connection with future payments by 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 10.14. This provision governs only the relationship
among the Administrative Agent, each Defaulting Lender and the other Lenders; nothing hereunder
shall limit the obligation of Borrower to repay all Loans in accordance with the terms of this
Agreement. The provisions of this section shall apply and be effective regardless of whether a
Default occurs and is continuing, and notwithstanding (i) any other provision of this Agreement to
the contrary, (ii) any instruction of Borrower as to its desired application of payments or (iii)
the suspension of such Defaulting Lender’s right to vote on matters which are subject to the
consent or approval of the Required Lenders or all Lenders.
ARTICLE XI.
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the Lenders
under applicable law, if 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
of its Affiliates to or for the credit or account of Borrower may be offset and applied toward the
payment of the Obligations owing to such Lender at any time prior to the date that such Default has
been fully cured, whether or not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has payment
made to it upon its Loans (other than payments received pursuant to Sections 3.1,
3.2, 3.4 or 3.5) in a greater proportion than that received by any other
Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Loans held by the
other Lenders so that after such purchase each Lender will hold its ratable proportion of Loans.
If any Lender, whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such
that all Lenders share in the benefits of such collateral ratably in proportion to their Loans. In
case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
ARTICLE 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 Borrower and the Lenders and their respective successors
and assigns, except that (i) Borrower shall not have the right to assign its rights or obligations
under the Loan Documents and (ii) any assignment by any Lender must be made in compliance with
Section 12.3. The parties to this Agreement acknowledge that clause (ii) of this
Section 12.1 relates only to absolute assignments and 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
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hereunder unless and until the parties thereto have complied with the provisions of
Section 12.3. The Administrative 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 Administrative 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.
(i) Permitted Participants; Effect. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time sell to one or more banks,
financial institutions, pension funds, or any other funds or entities
(“Participants”) participating interests in any Loan owing to such Lender, any Note
held by such Lender, any Commitment of such Lender or any other interest of such Lender
under the Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any such Note for
all purposes under the Loan Documents, all amounts payable by Borrower under this Agreement
shall be determined as if such Lender had not sold such participating interests, and
Borrower and the Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under the Loan Documents.
(ii) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has an interest which would
require consent of all the Lenders pursuant to the terms of Section 8.2 or of any
other Loan Document.
(iii) Benefit of Setoff. Borrower agrees that each Participant which has
previously advised Borrower in writing of its purchase of a participation in a Lender’s
interest in its Loans 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. 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, provided that such Lender and Participant may not each setoff amounts against
the same portion of the Obligations, so as to collect the same amount from Borrower twice.
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.
12.3. Assignments.
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(i) Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to any Eligible Assignee
all or any portion (greater than or equal to $5,000,000 for each assignee, so long as the
hold position of the assigning Lender is not less than $5,000,000) of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in the form of
Exhibit D hereto or in such other form as may be agreed to by the parties thereto.
The consent of the Administrative Agent shall be required prior to an assignment becoming
effective with respect to an Eligible Assignee which is not a Lender or an Affiliate
thereof. Such consent shall not be unreasonably withheld.
(ii) Effect; Effective Date. Upon (i) delivery to the Administrative Agent of
a notice of assignment, substantially in the form attached as Exhibit “I” to Exhibit
D hereto (a “Notice of Assignment”), together with any consents required by
Section 12.3(i), and (ii) payment of a $3,500 fee by the assignor or assignee to the
Administrative Agent for processing such assignment, such assignment shall become effective
on the effective date specified in such Notice of Assignment. The Notice of Assignment
shall contain a representation by the Eligible Assignee to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the applicable
assignment agreement are “plan assets” as defined under ERISA and that the rights and
interests of the Eligible Assignee in and under the Loan Documents will not be “plan assets”
under ERISA. On and after the effective date of such assignment, such Eligible Assignee
shall for all purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto, and no further
consent or action by Borrower, the Lenders or the Administrative Agent shall be required to
release the transferor Lender, and the transferor Lender shall automatically be released on
the effective date of such assignment, with respect to the percentage of the Aggregate
Commitment and Loans assigned to such Eligible Assignee. Upon the consummation of any
assignment to a Eligible Assignee pursuant to this Section 12.3.2, the transferor
Lender, the Administrative Agent and Borrower shall make appropriate arrangements so that
replacement Notes are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Eligible Assignee, in each case in principal amounts
reflecting their Commitment, as adjusted pursuant to such assignment.
12.4. Dissemination of Information. Borrower authorizes each Lender to disclose to
any Participant or Eligible Assignee or any other Person acquiring an interest in the Loan
Documents by operation of law (each a “Transferee”) and any prospective Transferee any and
all information in such Lender’s possession concerning the creditworthiness of Borrower and its
Subsidiaries, subject to Section 9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the United States or
any State thereof, the transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of Section 3.5.
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ARTICLE XIII.
NOTICES
13.1. Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to certain notices, all notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing or by facsimile or by email (if
confirmed in writing as provided below) and addressed or delivered to such party at its address set
forth below its signature hereto or at such other address (or to counsel for such party) as may be
designated by such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted and any notice, if transmitted by email, shall be
deemed given when transmitted (provided a copy of such notice is also sent by overnight delivery
service on the date of such email).
13.2. Change of Address. Borrower, the Administrative Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the other parties
hereto.
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 Borrower and
the Lenders and each party has notified the Administrative Agent by telex or telephone, that it has
taken such action.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, Borrower, the Administrative Agent and the Lenders have executed
this Agreement as of the date first above written.
| TERRENO REALTY LLC, a Delaware limited liability company |
||||
| By: | TERRENO REALTY CORPORATION, a | |||
| Maryland corporation, its sole member | ||||
| By: | /s/ Xxxxxxx X. Coke | |||
| Print Name: | Xxxxxxx X. Coke | |||
| Title: President and Chief Financial Officer | ||||
| Address for Notices: 00 Xxxxxx Xxxx, Xxxxx Xxxxx Xxx Xxxxxxxxx, XX 00000 |
||||
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| COMMITMENT: $40,000,000 |
KEYBANK NATIONAL ASSOCIATION, Individually and as Administrative Agent |
|||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Print Name: | Xxxxxx X. Xxxxxx | |||
| Title: Vice President | ||||
|
000 Xxxxxx Xxxxxx, 0xx Xxxxx XX-00-00-0000 Xxxxxxxxx, Xxxx 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxx Xxxxxx Email: Xxxxxx_Xxxxxx@XxxXxxx.xxx |
||||
| With a copy to: | KeyBank National Association 000 Xxxxxxxx, 0xx Xxxxx Xxxxxxxxx, Xxxx 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxx Xxxxxx |
|||
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| Commitment: $20,000,000 | PNC BANK, NATIONAL ASSOCIATION |
|||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Print Name: | Xxxxxxx Xxxxxxx | |||
| Title: Assistant Vice President | ||||
|
000 Xxxxx Xxxxxx, XXX0-XXXX-00-X Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxx X. Xxxxxxxx Email: xxxx.xxxxxxxx@xxx.xxx |
||||
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| Commitment: $20,000,000 | UNION BANK, N.A. |
|||
| By: | /s/ Xxxxxxxxx Xxxxxx | |||
| Print Name: | Xxxxxxxxx Xxxxxx | |||
| Title: Vice President | ||||
| 000 Xxxxxxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Phone: 000-000-0000 Facsimile: 000-000-0000 Attention: Xxxxxxxxx Xxxxxx Email: Xxxxxxxxx.xxxxxx@xxxxxxxxx.xxx |
||||
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